Agenda packet — Oxnard City Council, October 15, 2024 (part 2 of 2)

Agreement shall be the property of the CITY, and all patents or copyrights shall be assigned to the CITY, unless otherwise agreed. SERVICE PROVIDER agrees that CITY may make modifications to computer software furnished by SERVICE PROVIDER without infringing SERVICE PROVIDER’s copyright or any license granted to CITY, unless otherwise agreed.

17.4. Ownership of Documents. Every report, draft, work product, map, record, and other document reproduced, prepared, or caused to be prepared by the SERVICE PROVIDER pursuant to or in connection with this Agreement shall be the exclusive property of the CITY.

17.5. Confidentiality. Information that is exempt from disclosure to the public is confidential. This includes information relating to the past, present, or future affairs of the City or information belonging to a third party whose information is in the City’s possession or control under obligations of confidentiality. SERVICE PROVIDER may be granted access to information that is exempt from disclosure to the public (Government Code Section 7920.505) and may contain “trade secrets” (see Government Code Section 7924.510(f)) when it is necessary for SERVICE PROVIDER to perform its obligations pursuant to this Agreement. If SERVICE PROVIDER is granted such access to confidential information, SERVICE PROVIDER shall not be considered to be a member of the public as that term is used in Government Code Section 7920.515.

17.6. Disclosure of Information. SERVICE PROVIDER shall not disclose, publish, or authorize others to disclose or publish, design data, drawings, specifications, reports, or other information pertaining to the projects assigned to SERVICE PROVIDER by the CITY or other information to which the SERVICE PROVIDER has had access during the term of this Agreement without the prior written approval of the CITY’s Designated Representative during the term of this Agreement and for a period of two (2) years after the termination of this Agreement.

17.7. No Warranty. Other than an obligation upon the CITY to deal in good faith, the CITY makes no warranties and shall bear no liability or responsibility for errors or omissions in any Confidential Information disclosed under this Agreement or for any business decisions made by SERVICE PROVIDER in reliance on any Confidential Information disclosed under this Agreement.

18. ASSIGNMENT.

This Agreement is for the non-professional services of SERVICE PROVIDER. Any attempt by SERVICE PROVIDER to assign the benefits or burdens of this Agreement without the prior written approval of CITY shall be prohibited and shall be null and void.

SERVICE PROVIDER's services pursuant to this Agreement shall be provided by the SERVICE PROVIDER’s Designated Representative or directly under his/her supervision, and SERVICE PROVIDER shall not assign another to supervise the SERVICE 146
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PROVIDER's performance of this Agreement without the prior written approval of CITY, by and through the CITY’s Designated Representative.

19. NOTICE OF BREACH AND OPPORTUNITY TO CURE.

Neither Party will be in breach of this Agreement where the breach is capable of being cured, or until written notice of the breach is received from the non-breaching Party.

The Party charged with breach will have fifteen (15) calendar days from the date of receiving such notice in which to cure the breach or otherwise respond. If the circumstances leading to the charge that the Agreement was breached have not been cured or explained to the satisfaction of the other Party within fifteen (15) days from the date on which the breaching Party received notice of breach, the non-breaching Party may terminate this Agreement. Notice shall be given in the manner set forth in section 20.

20. NOTICES.

All notices given or required to be given pursuant to this Agreement shall be in writing and may be given by personal delivery or by first-class mail. Notice sent by mail shall be addressed to each Party’s Designated Representative as set forth above in Section 6. When addressed in accordance with this Section, such notice shall be deemed given upon deposit in the United States mail, postage prepaid. In all other instances, notices shall be deemed given at the time of actual delivery. Changes may be made in the names or addresses of persons to whom notices are to be given by giving notice in the manner prescribed in this Section.

21. COVENANTS AND CONDITIONS.

Each term and each provision of this Agreement to be performed by SERVICE PROVIDER shall be construed to be both a covenant and a condition.

22. WAIVER.

CITY’s review or acceptance of, or payment for, work product prepared by SERVICE PROVIDER under this Agreement will not be construed to operate as a waiver of any rights CITY may have under this Agreement or of any cause of action arising from SERVICE PROVIDER’s performance. A waiver by CITY of any breach of any term, covenant, or condition contained in this Agreement will not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition contained in this Agreement, whether of the same or different character.

23. INDEMNIFICATION, HOLD HARMLESS & DEFENSE.

23.1 As a separate and independent covenant from SERVICE PROVIDER’s obligations under this section, SERVICE PROVIDER shall to the fullest extent permitted by law, immediately defend, indemnify, and hold harmless CITY, its legislative and advisory bodies, and the CITY’s officials, directors, officers, 147
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employees, and agents (the “Indemnitees”) from and against all liabilities regardless of nature, type, or cause, arising out of or resulting from or in connection with SERVICE PROVIDER’s performance of this Agreement or SERVICE PROVIDER’s failure to comply with any of its obligations contained in this Agreement. Liabilities subject to the duties to defend and indemnify include, without limitation, all claims, losses, damages, penalties, fines, and judgments; associated investigation and administrative expenses; defense costs, including but not limited to reasonable attorneys’ fees; court costs; and costs of alternative dispute resolution. SERVICE PROVIDER’s obligation to indemnify applies unless it is adjudicated that any of the liabilities covered by this Section are the result of the sole active negligence or sole willful misconduct of any of the Indemnitees.

23.2 The duty to defend is a separate and distinct obligation from SERVICE PROVIDER’s duty to indemnify. SERVICE PROVIDER shall be obligated to defend in all legal, equitable, administrative, or special proceedings, with counsel approved by the CITY Attorney, immediately upon tender to SERVICE PROVIDER of the claim in any form or at any stage of an action or proceeding, whether or not liability is established. An allegation or determination of negligence or willful misconduct by any of the Indemnitees shall not relieve SERVICE PROVIDER from its separate and distinct obligation to defend the Indemnitees. The obligation to defend extends through final judgment, including exhaustion of any appeals. The defense obligation includes the obligation to provide independent defense counsel if SERVICE PROVIDER asserts that liability is caused in whole or in part by the negligence or willful misconduct of the Indemnitees. If it is finally adjudicated that liability was caused by the sole active negligence or sole willful misconduct of any of the Indemnitees, SERVICE PROVIDER may submit a claim to CITY for reimbursement of reasonable attorneys’ fees and defense costs.

23.3 The review, acceptance or approval of SERVICE PROVIDER’s work or work product by any of the Indemnitees shall not affect, relieve or reduce SERVICE PROVIDER’s indemnification or defense obligations. SERVICE PROVIDER waives any right of contribution against CITY or any of CITY’s officers, employees, agents, or volunteers arising out of such failure to inspect, review, monitor, or supervise the work performed by SERVICE PROVIDER pursuant to this Agreement. The provisions of this Section shall not be restricted by and do not affect the provisions of this Agreement relating to Section 24. The SERVICE PROVIDER’s obligations under this Section of the Agreement shall survive the termination of the Agreement.

23.4 SERVICE PROVIDER agrees to pay all required taxes on amounts paid to SERVICE PROVIDER under this Agreement, and to indemnify and hold CITY harmless from any and all taxes, assessments, penalties, and interest asserted against CITY by reason of the independent contractor relationship created by this Agreement. SERVICE PROVIDER shall be solely responsible for, and shall save CITY harmless from, all matters relating to the payment of SERVICE PROVIDER’s subcontractors, material suppliers, directors, officers, employees, agents and 148
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representatives, including compliance with social security requirements, federal and State income tax withholding, and all other regulations governing employer- employee relations, as applicable. CITY shall have the right to offset against the amount of any compensation due to SERVICE PROVIDER under this Agreement any amount due to CITY from SERVICE PROVIDER as a result of its failure to promptly pay to CITY any reimbursement or indemnification arising under this Section.

24. INSURANCE.

SERVICE PROVIDER shall obtain and maintain during the performance of any services under this Agreement the insurance coverages listed within “Exhibit C”, which is attached hereto and incorporated herein by this reference, unless the Risk Manager waives, in writing, the requirement that SERVICE PROVIDER obtain and maintain such insurance coverages. Such insurance must be issued by a company satisfactory to the Risk Manager. SERVICE PROVIDER shall, before performance of any Services pursuant to this Agreement, file with the Risk Manager evidence of insurance coverage as specified in “Exhibit C”. Maintenance of insurance coverages by SERVICE PROVIDER is a material element of this Agreement. SERVICE PROVIDER’S failure to maintain or renew insurance coverages or to provide renewal evidence shall be considered a material breach of this Agreement.

25. LIVING WAGE REQUIREMENTS.

During the term of this Agreement, SERVICE PROVIDER understands and agrees that if Living Wages are applicable subject to the 2002 Oxnard City Council Living Wage Policy, attached as “Exhibit D” to this Agreement. SERVICE PROVIDER will pay and/or provide the wages and/or benefits required therein to all of its employees engaged in whole or in part in performing the services provided for by this Agreement. The duty to pay the correct wage is the responsibility of the SERVICE PROVIDER.

26. PREVAILING WAGE REQUIREMENTS.

26.1. Application. The payment of State prevailing wages as designated for Ventura County shall apply to public works projects. However, this section shall not apply to work performed on a public works project of twenty-five thousand dollars ($25,000) or less when the project is for construction, alteration, demolition, installation, or repair work; or to work performed on a public works project of fifteen thousand dollars ($15,000) or less when the project is for maintenance work.

Prevailing wages are required to be paid to all workers, including subcontracted employees.

26.2. Compliance with California Department of Industrial Relations (DIR).

To determine if this Agreement is subject to compliance monitoring and enforcement, go to:
https://www.dir.ca.gov/Public-Works/PublicWorksSB854FAQ.html 149
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26.3. Contract Splitting. It is unlawful to split, or separate into small portions, work orders, projects, purchases, or public works projects for the purpose of evading these prevailing wage requirements.

26.4. Use of Prevailing Wages vs. Living Wages. In the event that there is a difference between the amount of wages to be paid under the CITY of Oxnard’s local Living Wage requirements and the requirements of this provision, the wage rate that is the higher of the two shall be applicable to this Agreement. The duty to pay the correct wage is the responsibility of the SERVICE PROVIDER.

27. CONFLICT OF INTEREST

SERVICE PROVIDER covenants that it does not have any interest, nor shall it acquire any interest, directly or indirectly, which would conflict in any manner with the performance of SERVICE PROVIDER’s services under this Agreement. SERVICE PROVIDER further covenants that in the performance of services under this Agreement, no officer, employee or agent of SERVICE PROVIDER having such interest shall be employed by it. In the event the CITY determines that SERVICE PROVIDER must disclose its financial interests by completing and filing a Fair Political Practices Commission Form 700, Statement of Economic Interests, SERVICE PROVIDER shall file such Form 700 with the CITY Clerk’s Office pursuant to the written instructions provided by the CITY Clerk. Acquisition or maintenance of a conflicting interest by SERVICE PROVIDER may result in termination of this Agreement by the CITY.

28. [RESERVED]

29. SUBCONTRACTING.

If CONSULTANT requires the assistance of a subcontractor to render any services under this agreement, Consultant shall obtain prior written consent from the City before a subcontractor performs any service pursuant to this Agreement. All subcontractors shall be identified in the scope of work attached to this Agreement as Exhibit A. CONSULTANT is fully responsible for satisfactory completion of all its subcontractors’ work. All subcontractors shall be properly licensed and insured; and bonded, if applicable.

CONSULTANT shall be responsible for all liabilities regardless of nature, type, or cause, arising out of or resulting from or in connection with subcontractors performance pursuant to this Agreement or subcontractors failure to comply with any of its obligations in connection with this Agreement.

30. DISPUTES.

Except as otherwise provided in these provisions, any dispute concerning a question of fact arising under this Agreement, shall be decided by the CITY’s Designated Representative, who shall reduce this decision to writing and mail a copy to the SERVICE PROVIDER. The decision of the CITY’s Designated Representative shall be final and 150
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conclusive unless SERVICE PROVIDER requests mediation within ten (10) calendar days. Pending final decision of a dispute, the SERVICE PROVIDER shall proceed diligently with the performance of the Agreement and in accordance with the decision of the CITY’s Designated Representative.

31. DISPUTE RESOLUTION.

Should an unresolved dispute arise out of this Agreement, any Party may request that it be submitted to mediation. The Parties shall meet in mediation within a reasonable time not to exceed forty five (45) days of a request. The mediator shall be agreed to by the mediating Parties. In the absence of an agreement on a mediator, the Parties shall each submit one name from mediators listed by the American Arbitration Association, the California State Board of Mediation and Conciliation, or other agreed- upon service. The mediator shall be selected by a “blindfold” process. The cost of mediation shall be borne equally by both Parties. Neither Party shall be deemed the prevailing Party. No Party shall be permitted to file a legal action without first meeting in mediation and making a good faith attempt to reach a mediated settlement. The mediation process, once commenced by a meeting with the mediator, shall last until agreement is reached by the Parties but not more than sixty (60) calendar days, unless the maximum time is extended in writing by both Parties.

32. AUDIT.

CITY shall have the option of inspecting, auditing and/or reproducing all records and other written materials: used by SERVICE PROVIDER in preparing its billings to CITY as a condition precedent to any payment to SERVICE PROVIDER; or for other purposes relating to the Agreement. SERVICE PROVIDER will promptly furnish all documents requested by CITY. Additionally, if this Agreement is in excess of $10,000, the State Auditor may examine and audit SERVICE PROVIDER for a period of 3 years after final payment under the Agreement. Regardless of whether a State audit is permitted, SERVICE PROVIDER shall maintain and preserve all such records for a period of at least 3 years after final payment under the Agreement or until an audit has been completed and accepted by CITY, whichever occurs later. SERVICE PROVIDER shall maintain all such records in CITY or to promptly reimburse CITY for all reasonable costs incurred in conducting the audit at a location other than in CITY, including but not limited to expenses for personnel, salaries, private auditor, travel, lodging, meals and overhead. SERVICE PROVIDER shall include a copy of this Section in all contracts with its subcontractors, and SERVICE PROVIDER shall be responsible for immediately obtaining those records or other written material from its subcontractors upon a request by the State Auditor and/or CITY.

33. ADVERTISING AND PUBLICITY

SERVICE PROVIDER shall not use the name of or refer to CITY directly or indirectly in any advertisement, news release, or professional or trade publication without 151
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prior written approval from the City Manager. This Section shall survive the termination of this Agreement.

34. NONDISCRIMINATORY EMPLOYMENT.

SERVICE PROVIDER shall not unlawfully discriminate against any individual based on race, color, religion or religious creed, national origin, ancestry, ethnic group identification, primary language, physical disability, mental disability, medical condition, genetic information, marital status, gender, gender identity, gender expression, sex, sexual orientation, age, immigration status, citizenship or military and veteran status.

SERVICE PROVIDER understands and agrees that it is bound by and will comply with all legal nondiscrimination mandates. For every subcontractor who will perform Services, SERVICE PROVIDER shall be responsible for such subcontractor’s compliance with this Section.

35. FORCE MAJEURE.

Neither the SERVICE PROVIDER nor the CITY shall be responsible for any delay caused by any contingency beyond their control, including, but not limited to, war or insurrection, walkouts by the Party’s own employees, fires, natural calamities, riots, or demands or requirements of governmental agencies other than the CITY.

36. GOVERNING LAW.

The terms of this Agreement shall be interpreted according to the laws of the State of California. Should litigation occur, venue shall be in the Superior Court of California, County of Ventura.

37. SEVERABILITY.

If any portion of this Agreement is declared by a court of competent jurisdiction to be invalid or unenforceable, then such portion will be deemed modified to the extent necessary in the opinion of the court to render such portion enforceable and, as so modified, such portion and the balance of this Agreement will continue in full force and effect and be enforceable.

38. INTEGRATED AGREEMENT.

This Agreement and the attached exhibits referenced herein to this Agreement represent the entire understanding between the Parties. No verbal agreement or implied covenant shall be held to vary the provisions of this Agreement. This Agreement shall bind and inure to the benefit of the Parties to this Agreement and any subsequent successors and assigns.

39. NO THIRD-PARTY BENEFICIARY.
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This Agreement shall not be construed to be an agreement for the benefit of any third-party or parties, and no third party or parties shall have any claim or right of action under this Agreement.

40. AUTHORITY TO EXECUTE.

Each Party hereto expressly warrants and represents that through its Designated Representative it has the authority to execute this Agreement on behalf of its corporation, partnership, business entity, or governmental entity, and warrants and represents that the Designated Representative has the authority to bind each Party to the performance of its obligations hereunder.

41. EXECUTION – COUNTERPARTS.

This Agreement may be executed in any number of counterparts and each such duplicate counterpart shall constitute an original, but they shall not be effective nor enforceable unless and until it is executed with the handwritten signature or electronic signature of an authorized representative of each of the relevant Parties. No counterpart shall be deemed to be an original or presumed delivered unless and until the counterpart executed by the other Party to this Agreement is in the physical possession of the Party seeking enforcement thereof.

42. INCONSISTENT OR CONFLICTING TERMS.

In the event of any contradictions or inconsistencies between any attached documents or exhibits incorporated by reference herein and the provisions of the Agreement itself, the terms of the Agreement shall control. Any exhibit that is attached and incorporated by reference shall be limited to the purposes for which it is attached, as specified in this Agreement. Any contractual terms or conditions contained in such exhibit imposing additional obligations on the CITY are not binding upon the CITY’s Designated Representative unless specifically agreed to in writing, and initiated by CITY’s Designated Representative, as to each additional contractual term or condition.

43. ACKNOWLEDGEMENT.

By signing below, SERVICE PROVIDER acknowledges that it has reviewed the CITY’s Trade Services Agreement terms and conditions and insurance requirements and that SERVICE PROVIDER hereby agrees to full compliance.

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In witness whereof, the Parties have entered into this Agreement effective on the date as written in section 3 and upon signature of all Parties.

CITY OF OXNARD SNF POLYDYNE INC.

DBA POLYDYNE INC.

☐John C. Zaragoza, Mayor1 Date Boyd Stanley, Sr. Vice-President Date ☐Jennifer Yates, 2
Purchasing Manager

Mark Schlag, Assistant Secretary 3 Date

ATTEST:

Rose Chaparro, CITY Clerk Date
(only if Mayor signs)

APPROVED AS TO FORM:

Stephen M. Fischer, CITY Date
Attorney (always required)

1 The City Council must authorize and the Mayor must execute any agreement over $200,000. 2 The Purchasing Agent may execute any authorized agreement up to $200,000. 3 The City requires the following for any contract:
● For a corporation, the signatures of the Board President, CEO or Vice President and of the Board Secretary, Assistant Secretary, CFO or Assistant Treasurer;
● For an LLC, the signatures of at least two managers of the LLC (company directors, not lower-level managers); or ● For a partnership, the signature of a partner. If the partnership is a limited partnership, the signer must be a general partner.

If the company has a different structure, or if the above-listed persons are not the appropriate signers, please submit to the City Attorney legally-binding documentation stating who can sign and bind your company.

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EXHIBIT A

TRADE SERVICE AGREEMENT
(CITY of Oxnard and SNF POLYDYNE INC. DBA POLYDYNE INC.)

SCOPE OF SERVICES

City Project Manager: Roberto Fuentes, (805) 271-2203, [email protected]

The City of Oxnard Wastewater Treatment Plant (OWTP) owns and operates a Chemically Enhanced Primary Treatment (CEPT) facility. This facility is designed to add anionic polymer to the raw wastewater prior to the primary settling basins to improve primary settling performance. Currently, the City adds ferric chloride to the raw wastewater at the headworks. Therefore, the desirable polymer will need to be effective with pre-added ferric at reducing the total suspended solids (TSS).

SERVICE DESCRIPTION

1. Delivery
a. Timing: Delivery of bulk polymer shall be delivered within 4 weeks of agency request. All deliveries shall be made Monday through Friday between 8:00 a.m. and 4:00 p.m. b. Delivery vehicles: Shall be in good condition and operated by Supplier. Truck tractors and tank trailers shall be pneumatic-tired; conform to all applicable State and Federal regulations; and be fully equipped and maintained to safely transport and deliver specified chemical products. Tank trailers shall be specially designed to prevent leakage and resist rupture in the event of a collision, and carry all equipment necessary to respond to an accidental chemical release. Tanker shall be clearly identified and visible with company name. c. Delivery Driver: Shall be trained and experienced in handling specified chemical products, and be specifically trained to stop chemical flow in the event of an emergency. Supplier shall provide evidence of such training and experience upon request.
d. Posted Speed Limits: Shall be observed at all times while driving on City property. Supplier shall be completely liable for any damage to property or personnel. e. Delivery Equipment: Shall include an appropriate compression unit and piping to permit safe transfer of the specified chemical product to stationary bulk containers. Hoses, fittings and appurtenant equipment shall be provided by Supplier and be free of leaks and contaminants. f. Unloading: Unloading shall be done in accordance with the following:
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i. Shall be done in a safe manner by delivery driver in the presence of a plant operator. ii. Appropriate personal protective equipment (PPE) clothing shall be worn, and industry safety practices and procedures followed explicitly at all times. iii. Delivery driver must present chemical manifest.
iv. Delivery driver may be required to capture a sample of the product from the delivery tank in order for a plant operator to do a visual inspection. v. Delivery driver to be able to provide proof of tank and hose inspections prior to delivery to demonstrate that all components are in proper working order. g. Refusal of Delivery: City may refuse delivery of product at no penalty to the City if:
i. Product does not match the specific gravity.
ii. If there is debris in the sample from the delivery truck. iii. Supplier is non compliant with industry standard safety practices and procedures. iv. Failure of Supplier to wear proper PPE while making chemical transfers. Supplier is to provide their staff with all required PPE.
h. Pay Quantity of Bulk Product Delivered: Shall be determined by weighing the tank trailer before and after filling at Supplier’s plant on a certified truck scale. Copies of weight master’s certificates shall be provided with delivery.
i. Other: Agency may require Supplier to furnish an affidavit stating product complies fully with this specification, a certified analysis of the product delivered, and/or the preventative maintenance schedule of delivery truck’s unloading compressor. j. Deliveries to the following locations as required:
● City of Oxnard Wastewater Treatment Plant, 6001 Perkins Road, Oxnard, CA

2. Quantity
Exact quantities may vary from the estimates given, and may be increased or decreased to meet the agency's requirements. No minimum is guaranteed.

3. Invoicing
A separate invoice shall be provided for each delivery during contract period. Invoices shall be sent to [email protected].

4. Specification
Supplier shall bring apparent error or omissions to City’s attention.

5. Chemical Specification for the following locations:

Wastewater Treatment Plant, located at 6001 Perkins Road, Oxnard, California 93033 156
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 Anionic Polymer: Estimated annual quantity is 100,000 pounds. Delivery by bulk tank.

Polymers supplied shall be clean and free of foreign substances. Vendor must provide a certificate of analysis for each delivery of product. The chosen polymer shall have no apparent separation within 30 days of delivery to the City’s bulk storage facilities.

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EXHIBIT B

TRADE SERVICE AGREEMENT
(CITY of Oxnard and SNF POLYDYNE INC. DBA POLYDYNE INC.)

SCHEDULE OF COMPENSATION

Item No. Polymer Type Price per Pound
1 Anionic Polymer $1.01

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EXHIBIT C

TRADE SERVICES AGREEMENT
(CITY of Oxnard and SNF POLYDYNE INC. DBA POLYDYNE INC.)

INSURANCE REQUIREMENTS

Prior to contract approval, CONSULTANT/SERVICE PROVIDER/SELLER/BIDDER (hereafter referred to as “SERVICE PROVIDER”) must procure, agree to maintain and supply evidence of insurance at the levels listed and in accordance with the other provisions listed in this document.

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INSURANCE REQUIREMENTS FOR VENDORS
(WHO DELIVER, INSTALL OR MAINTAIN PRODUCTS)

1. Vendor shall obtain and maintain during the performance of any services under this Agreement the following insurance against claims for injuries to persons or damages to property which may arise from or in connection with the sale and delivery, installation or maintenance of products by vendor, its agents, representatives, or employees.

a. Commercial General Liability Insurance, including Contractual Liability, in an amount not less than $1,000,000 combined single limit for bodily injury and property damage for each claimant for general liability with coverage equivalent to Insurance Services Office Commercial General Liability Coverage (Occurrence Form CG 0001). If a general aggregate limit is used, that limit shall apply separately to the project or shall be twice the occurrence amount;

b. Business Automobile Liability Insurance in an amount not less than $1,000,000 combined single limit for bodily injury and property damage for each claimant for automobile liability with coverage equivalent to Insurance Services Office Automobile Liability Coverage (Occurrence Form CA0001) covering Code No. 1, “any auto;”

c. Workers’ Compensation Insurance in compliance with the laws of the State of California, and Employer’s Liability Insurance in an amount not less than $1,000,000 per claimant. Additionally, the workers’ compensation policy shall include a waiver of all rights of subrogation which the insurer may have against the City.

2. Vendor shall, prior to performance of any services, file with the Risk Manager certificates of insurance with original endorsements effecting coverage required by this Exhibit INS-I. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The certificates and endorsements are to be on the attached forms or on other forms approved by the Risk Manager. All certificates and endorsements are to be received and approved by the Risk Manager before work commences. City reserves the right to require complete certified copies of all required insurance policies at any time. The certificates of insurance and endorsements shall be sent via email. If you have not received your request or are having difficulty with electronic upload, contact [email protected]

3. Vendor agrees that all insurance coverages shall be provided by a California admitted insurance carrier with an A.M. Best rating of A:VII or better and shall be endorsed to state that coverage may not be suspended, voided, canceled by either party, or reduced in coverage or limits without 30 days’ prior written notice to the Risk Manager. The Risk Manager shall not approve or accept any endorsement if the endorsement contains “best effort” modifiers or if the insurer is relieved from the responsibility to give such notice.

4. Vendor agrees that the Commercial General Liability and Business Automobile Liability Insurance policies shall be endorsed to name City, its City Council, officers, employees and volunteers as additional insureds as respects: liability arising out of activities performed by or on behalf of vendor; products and completed operations of vendor; premises owned, occupied or used by vendor; or automobiles owned, leased, hired or borrowed by vendor. The coverage shall contain no special limitations on the scope of protection afforded to City, its City Council, officers, employees and volunteers. The General Liability Special Endorsement Form and Automobile Liability Special Endorsement Form attached to this Exhibit INS-I or substitute forms containing the same information and acceptable to the Risk Manager shall be used to provide the endorsements (ISO form CG 2010 11/85 or if not available, CG 2010 with an edition date prior to 01/04 and CG 2037).

5. The coverages provided to City shall be primary and not contributing to or in excess of any existing City insurance coverages (this must be endorsed). Additionally, the workers’ compensation policy shall include a waiver of all rights of subrogation which the insurer may have against the City. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its City Council, officers, employees and volunteers. The insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer’s liability.

6. Any deductibles or self-insured retentions must be declared to and approved by the Risk Manager. At the option of the Risk Manager, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City, its City Council, officers, employees and volunteers, or the vendor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses.

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INSTRUCTION FOR SUBMITTING INSURANCE CERTIFICATES AND ENDORSEMENT FORMS

Certificates of Insurance

The sample accord form on the following page is provided to facilitate your preparation and submission of certificates of insurance. You may use this or any industry form that shows coverage as broad as that shown on the attached sample. Please note the certificate holder address must be as shown on the attached sample accord form with the contract number and insurance exhibit identification information completed. Improperly addressed certificates may delay the contract start-up date because the City’s practice is to return unidentifiable insurance certificates to the insured for clarification as to the contract number. Cancellation provisions must be endorsed to the policy. Modifying the certificate does not change coverage or obligate the carrier to provide notice of cancellation.

Endorsement Forms

Original endorsements are required for commercial general liability and business automobile liability insurance policies and must be attached to the applicable certificate of insurance. City preference is that you use the endorsement forms which are attached. Substitute forms will be accepted, however, as long as they include provisions comparable to the attached.

INS-I.doc

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SAMPL

ACORD CERTIFICATE OF INSURANCE ISSUE DATE (MM/DD/YY)

PRODUCER

THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.

CODE SUB-CODE COMPANIES AFFORDING INSURANCE COVERAGE INSURED COMPANY

LETTER A SPECIFY COMPANY NAMES IN THIS SPACE COMPANY

LETTER B COVERAGES
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. CO LTR

TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE DATE (MM/DD/YY)

POLICY EXPIRATION DATE (MM/DD/YY)
LIMITS

GENERAL LIABILITY [x] COMMERCIAL GENERAL LIABILITY [x] CLAIMS MADE [x] OCCUR. [x] OWNER'S & CONTRACTOR'S PROT.

GENERAL AGGREGATE $1,000,000
PRODUCTS COMP/OP AGG. $1,000,000
PERSONAL & ADV. INJURY $1,000,000
EACH OCCURRENCE $1,000,000
FIRE DAMAGE (Any one fire) $
MED. EXPENSE (Any one person) $

AUTOMOBILE LIABILITY [x] ANY AUTO ALL OWNED AUTOS SCHEDULED AUTOS HIRED AUTOS NON-OWNED AUTOS GARAGE LIABILITY

COMBINED SINGLE $1,000,000
LIMIT
BODILY INJURY $
(Per person)
BODILY INJURY $
(Per accident)
PROPERTY DAMAGE $

EXCESS LIABILITY UMBRELLA FORM OTHER THAN UMBRELLA FORM

EACH OCCURRENCE $
AGGREGATE $

WORKERS' COMPENSATION AND EMPLOYERS' LIABILITY

STATUTORY LIMITS
EACH ACCIDENT $1,000,000
DISEASE-POLICY LIMIT $1,000,000
DISEASE-EACH EMPLOYEE $1,000,000

OTHER

DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES/RESTRICTIONS/SPECIAL ITEMS

CERTIFICATE HOLDER
CITY OF OXNARD ℅ Evident ID, Inc.
8520 Allison Pointe Blvd. Ste 223
PMB 5210
Indianapolis, Indiana 462500-4299 US

CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE COMPANY, ITS AGENTS OR REPRESENTATIVES. AUTHORIZED REPRESENTATIVE

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GENERAL LIABILITY SPECIAL ENDORSEMENT FOR THE CITY OF OXNARD (the “City”) SUBMIT IN DUPLICATE ENDORSEMENT NO.

ISSUE DATE (MM/DD/YY)

PRODUCER POLICY INFORMATION:

NAMED INSURED

APPLICABILITY This insurance pertains to the operations, products and/or tenancy of the named insured under all written agreements and permits in force with the City unless checked here  in which case only the following specific agreements and permits with the City are covered:

CITY AGREEMENTS/PERMITS

TYPE OF INSURANCE GENERAL LIABILITY
 COMMERCIAL GENERAL LIABILITY
 COMPREHENSIVE GENERAL LIABILITY
 OWNERS & CONTRACTORS PROTECTIVE

 Claims Made
Retroactive Date
 Occurrence

OTHER PROVISIONS

COVERAGES
LIABILITY LIMITS IN THOUSANDS $ EACH OCCURRENCE AGGREGATE  GENERAL
 PRODUCTS/COMPLETED OPERATIONS
 PERSONAL & ADVERTISING INJURY
 FIRE DAMAGE



Underwriter=s representative for claims pursuant to this insurance.

CLAIMS:

Name:

Address:

Telephone: ( )
In consideration of the premium charged and notwithstanding any inconsistent statement in the policy to which this endorsement is attached or any endorsement now or hereafter attached thereto, insurance company agrees as follows:

INSURED. The City, its officers, agents, employees and volunteers are included as insureds with regard to liability and defense of suits arising from the operations, products and activities performed by or on behalf of the named insured.

CONTRIBUTION NOT REQUIRED. As respects: (a) work performed by the named insured for or on behalf of the City; or (b) products sold by the named insured to the City; or (c) premises leased by the named insured from the City, the insurance afforded by this policy shall be primary insurance as respects the City, its officers, agents, employees or volunteers; or stand in an unbroken chain of coverage excess of the named insured’s scheduled underlying primary coverage. In either event, any other insurance maintained by the City, its officers, agents, employees or volunteers shall be in excess of this insurance and shall not contribute with it.

SEVERABILITY OF INTEREST. This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the company’s limits of liability. The inclusion of any person or organization as an insured shall not affect any right which such person or organization would have as a claimant if not so included.

CANCELLATION NOTICE. With respect to the interests of the City, this insurance shall not be canceled, or materially reduced in coverage or limits except after thirty (30) days prior written notice by receipted delivery has been given to the City.

PROVISIONS REGARDING THE INSURED’S DUTIES. Any failure to comply with reporting provisions of the policy or breaches or violations of warranties shall not affect coverage provided to the City, its officers, agents, employees or volunteers.

SCOPE OF COVERAGE. This policy, if primary, affords coverage at least as broad as: Insurance Services Office Commercial General Liability Coverage, “occurrence” form CG0001; or If excess, affords coverage which is at least as broad as the primary insurance form CG0001.

Except as stated above nothing herein shall be held to waive, alter or extend any of the limits, conditions, agreements or exclusions of the policy to which this endorsement is attached.

ENDORSEMENT HOLDER
CITY OF OXNARD ℅ Evident ID, Inc.
8520 Allison Pointe Blvd. Ste 223
PMB 5210
Indianapolis, Indiana 462500-4299 US

AUTHORIZED REPRESENTATIVE
 Broker/Agent  Underwriter  I (print/type name), warrant that I have authority to bind the above-mentioned insurance company and by my signature hereon do so bind this company to this endorsement. Signature (original signature required) Telephone: ( ) Date Signed

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AUTOMOBILE LIABILITY SPECIAL ENDORSEMENT FOR THE CITY OF OXNARD (the “City”)

SUBMIT IN DUPLICATE
ENDORSEMENT NO. ISSUE DATE (MM/DD/YY)
PRODUCER POLICY INFORMATION:

Insurance Company: Policy No.: Policy Period: (from) (to) LOSS ADJUSTMENT EXPENSE  Included in Limits  In Addition to Limits
Telephone:  Deductible  Self-Insured Retention (check which) of $ with an Aggregate of $ applies to coverage.  Per Occurrence  Per Claim (which) NAMED INSURED APPLICABILITY. This insurance pertains to the operations, products and/or tenancy of the named insured under all written agreements and permits in force with the City unless checked here  in which case only the following specific agreements and permits with the City are covered:

CITY AGREEMENTS/PERMITS

TYPE OF INSURANCE OTHER PROVISIONS
 COMMERCIAL AUTO POLICY
 BUSINESS AUTO POLICY
 OTHER
LIMIT OF LIABILITY CLAIMS: Underwriter’s representative for claims pursuant to this insurance.

Name:

Address:

Telephone: ( )

$ per accident, for bodily injury and property damage.

In consideration of the premium charged and notwithstanding any inconsistent statement in the policy to which this endorsement is attached or any endorsement now or hereafter attached thereto, insurance company agrees as follows:

1. INSURED. The City, its officers, agents, volunteers and employees are included as insureds with regard to liability and defense of suits arising from the operations, products and activities performed by or on behalf of the named insured.

SCOPE OF COVERAGE. This policy, if primary, affords coverage at least as broad as: Insurance Services Office Automobile Liability Coverage, “occurrence” form CA0001, code ("any auto"); or If excess, affords coverage which is at least as broad as the primary insurance form referenced in the preceding section (1).

Except as stated above nothing herein shall be held to waive, alter or extend any of the limits, conditions, agreements or exclusions of the policy to which this endorsement is attached.

ENDORSEMENT HOLDER

CITY OF OXNARD ℅ Evident ID, Inc.
8520 Allison Pointe Blvd. Ste 223
PMB 5210
Indianapolis, Indiana 462500-4299 US

AUTHORIZED REPRESENTATIVE
 Broker/Agent  Underwriter 
I (print/type name), warrant that I have authority to bind the above-mentioned insurance company and by my signature hereon do so bind this company to this endorsement.

Signature
(original signature required)
Telephone: ( ) Date Signed

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EXHIBIT D

TRADE SERVICES AGREEMENT
(CITY of Oxnard and SNF POLYDYNE INC. DBA POLYDYNE INC.)

LIVING WAGE POLICY

Pursuant to the Living Wage Policy adopted July 9, 2002 by the City Council and effective October 1, 2002, the City Manager and City Attorney are directed to include the following language in all standard trade services contracts and all unique trade services contracts governed by the Living Wage Policy.

A. SERVICE PROVIDER shall compensate any employee of SERVICE PROVIDER who provides services under this Agreement in accordance with the Living Wage Policy, attached hereto and incorporated herein by reference as the Living Wage Policy Exhibit. While this Agreement is in effect, SERVICE PROVIDER shall pay such employee no less than $19.51 per hour for each hour that such employee provides services under this Agreement. In addition, while this Agreement is in effect, SERVICE PROVIDER shall provide to such employee no less than 96 hours of paid leave per calendar year.

B. SERVICE PROVIDER agrees to post, at a location readily accessible to those employees providing services to the CITY, a copy of the Living Wage Policy adopted by City Council on July 9, 2002 and effective October 1, 2002.

C. If SERVICE PROVIDER fails to compensate such employee pursuant to the Living Wage Policy, the City Manager or designee shall terminate this Agreement on written notice to SERVICE PROVIDER, effective immediately.

D. In addition, if SERVICE PROVIDER fails to comply with the Living Wage Policy in any manner, SERVICE PROVIDER shall pay to CITY a fine of $500 and shall pay to any employee providing services under this Agreement a penalty of three times the amount or value of the compensation owed to such employee under the Living Wage Policy. SERVICE PROVIDER shall pay such fine and penalty within fifteen (15) calendar days after the City Manager or designee provides written notice to SERVICE PROVIDER of the amount owed.

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CITY OF OXNARD LIVING WAGE REQUIREMENTS
EFFECTIVE JULY 1, 2024

SERVICE PROVIDER shall compensate any employee of SERVICE PROVIDER who provides services under this Agreement in accordance with the Living Wage Policy, attached hereto and incorporated herein by reference as Exhibit D. While this Agreement is in effect, SERVICE PROVIDER shall pay such employee no less than $19.51 per hour for each hour that such employee provides services under this Agreement. This hourly rate shall be adjusted on July 1, 2025, and each July 1 thereafter, according to the percentage change in the Consumer Price Index, all items, prepared by the Bureau of Labor Statistics for the Los Angeles area relating to all urban consumers (CPI-U), index base 1982-84=100, comparing May of the previous year to May of the current year. In addition, while this Agreement is in effect, SERVICE PROVIDER shall provide to such employee no less than 96 hours of paid leave per calendar year.

a. SERVICE PROVIDER agrees to post, at a location readily accessible to those employees providing services to the CITY, a copy of the Living Wage Policy adopted by the Oxnard City Council on July 9, 2002 and effective October 1, 2002.

b. If SERVICE PROVIDER fails to compensate such employee pursuant to the Living Wage Policy, the City Manager or designee shall terminate this Agreement on written notice to SERVICE PROVIDER, effective immediately.

c. In addition, if SERVICE PROVIDER fails to comply with the Living Wage Policy in any manner, SERVICE PROVIDER shall pay to CITY a fine of $500 and shall pay to any employee providing services under this Agreement a penalty of three times the amount or value of the compensation owed to such employee under the Living Wage Policy. SERVICE PROVIDER shall pay such fine and penalty within fifteen (15) calendar days after the City Manager or designee provides written notice to SERVICE PROVIDER of the amount owed.

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EXHIBIT E

TRADE SERVICES AGREEMENT
(CITY of Oxnard and SNF POLYDYNE INC. DBA POLYDYNE INC.)

PREVAILING WAGE

1. SERVICE PROVIDER acknowledges that the Project defined in the Agreement between SERVICE PROVIDER and CITY is a “public work” as defined in Division 2, Part 7, Chapter 1 of the California Labor Code (“Chapter 1”), and that this Agreement is subject to Chapter 1 and the rules and regulations established by the Director of Industrial Relations (“DIR”) implementing such statutes. SERVICE PROVIDER shall perform the Project as a public work. SERVICE PROVIDER shall comply with and be bound by all the terms, rules and regulations described in Chapter 1 and the DIR’s rules and regulations as though set forth in full herein.

2. Pursuant to Labor Code Section 1773.2, copies of the prevailing rate of per diem wages for each craft, classification, or type of worker needed to perform the Agreement are on file at City Hall and will be made available to any interested party on request. SERVICE PROVIDER acknowledges receipt of a copy of the DIR determination of such prevailing rate of per diem wages, and SERVICE PROVIDER shall post such rates at each job site covered by this Agreement.

3. SERVICE PROVIDER is required to post job site notices, as prescribed by regulation. See Labor Code Section 1771.4(a)(2).

4. SERVICE PROVIDER shall comply with and be bound by the provisions of Labor Code Sections 1774 and 1775 concerning the payment of prevailing rates of wages to workers and the penalties for failure to pay prevailing wages. SERVICE PROVIDER shall, as a penalty to CITY, forfeit not more than $200 for each calendar day or portion thereof for each worker paid less than the DIR’s determined prevailing rates for the work or craft in which the worker is employed pursuant to this Agreement by SERVICE PROVIDER or any subcontractor. The Labor Commissioner shall determine the amount of the penalty as described in Section 1775.

5. SERVICE PROVIDER shall comply with Labor Code Section 1776, which requires SERVICE PROVIDER and each subcontractor to (1) keep accurate payroll records and verify such records in writing under penalty of perjury, (2) certify and make such payroll records available for inspection, and (3) inform CITY of the location of the records.

6. SERVICE PROVIDER shall comply with Labor Code Sections 1777.5, 1777.6 and 1777.7 and California Administrative Code Title 8, Section 200 et seq. concerning the employment of apprentices on public works projects for all apprenticeable occupations. Before commencing work under this Agreement, SERVICE PROVIDER shall provide CITY with a copy of the information submitted to any applicable apprenticeship program. Within 60 days after concluding the Project, SERVICE 167
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PROVIDER and each of its subcontractors shall submit to CITY a verified statement of the journeyman and apprentice hours performed under this Agreement.

7. SERVICE PROVIDER may not be debarred or suspended throughout the Agreement Term pursuant to Labor Code Section 1777.1 or 1777.7. If he, she or it becomes debarred or suspended in the Agreement Term, SERVICE PROVIDER must immediately notify CITY.

8. SERVICE PROVIDER is not qualified to bid on, be listed in a Bid proposal, or engage in the performance of any contract for public work, as defined in Labor Code Sections 1720 through 1861, unless currently registered and qualified to perform public work pursuant to Labor Code Section 1725.5. SERVICE PROVIDER shall continue without interruption to stay registered and qualified to perform public work pursuant to Section 1725.5 for the duration of the term of this Agreement. This provision does not apply to construction, alteration, demolition, installation or repair work of $25,000 or less or to maintenance work of $15,000 or less.

9. SERVICE PROVIDER acknowledges that 8 hours labor constitutes a legal day’s work. SERVICE PROVIDER shall comply with and be bound by Labor Code Section 1810.

10. SERVICE PROVIDER shall comply with and be bound by Labor Code Section 1813 concerning penalties for workers who work excess hours. SERVICE PROVIDER shall, as a penalty to CITY, forfeit $25 for each worker employed in the performance of this Agreement by SERVICE PROVIDER or by any subcontractor for each calendar day during which such worker is required or permitted to work more than 8 hours in any calendar day and 40 hours in any one calendar week in violation of the provisions of Division 2, Part 7, Chapter 1, Article 3 of the Labor Code. Pursuant to Labor Code Section 1815, work performed by SERVICE PROVIDER’s employees in excess of 8 hours per day and 40 hours per week shall be permitted upon public work upon compensation for all hours worked in excess of 8 hours per day at not less than 1 ½ times the basic rate of pay.

11. The Project listed in the Agreement is subject to compliance monitoring and enforcement by the DIR.

12. SERVICE PROVIDER shall be responsible for each and every one of its subcontractors’ compliance with Chapter 1, the DIR’s rules and regulations, and Labor Code Sections 1860 and 3700. SERVICE PROVIDER shall include in the written contract between it and each subcontractor a copy of, and a requirement that each subcontractor shall comply with, those statutory provisions. SERVICE PROVIDER shall be required to take all actions necessary to enforce such contractual provisions and ensure subcontractors’ compliance, including without limitation, conducting a periodic review of the certified payroll records of each subcontractor, and upon becoming aware of the failure of the subcontractor to pay its workers the specified prevailing rate of wages, SERVICE PROVIDER shall diligently take corrective action to halt or rectify any failure.

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13. To the maximum extent, SERVICE PROVIDER shall hold harmless, defend (with counsel approved by the City Attorney) and indemnify CITY, its legislative bodies, and its officials, officers, employees and agents from any demand or claim for damages, compensation, fines, penalties or other amounts arising out of or incidental to any acts or omissions listed above by any person or entity (including Service Provider, its subcontractors, and each of their officials, officers, employees and agents) in connection with any work undertaken or in connection with the Agreement, including without limitation the payment of all attorneys’ fees and other related costs. All duties of SERVICE PROVIDER under this Section shall survive Agreement termination. 169

CITY COUNCIL AGENDA REPORT

INFORMATION/CONSENT AGENDA
AGENDA ITEM NO. L.7

DATE: October 15, 2024

TO: City Council

FROM: Jeff Pengilley, Community Development Director, (805) 385-8208, [email protected]

SUBJECT: Amendment to Agreements for Professional Services with m6 Consulting, Inc. and CSG Consultants, Inc.

RECOMMENDATION

That the City Council approve and authorize the mayor to execute the following amendments to existing Agreements:

1. Second Amendment to Agreement Number A-8418 with m6 Consulting, Inc for on-call development plan check services, to increase the agreement amount by $1,100,000.00 for a total agreement amount of $3,100,000.00 and extend the Agreement by 2 years to February 1, 2027; and

2. First Amendment to Agreement Number A-8424 with CSG Consulting, Inc for development plan check services, to increase the agreement amount by $500,000.00 for a total agreement amount of $1,000,000.00 and extend the Agreement by 2 years to March 1, 2027.

(The Community Services, Public Safety, Housing & Development Committee approved 3-0 on September 24, 2024.)

BACKGROUND

On June 30, 2021, the Public Works Department sent out a Request For Qualifications (RFQ) for multi-year on-call professional engineering services. The RFQ solicited proposals for various professional on-call engineering services including on-call development plan check services. Both m6 Consulting Inc. and CSG Consultants, Inc. were selected through this process.

Agreement A-8418 with m6 Consulting Inc. was approved by City Council on February 1, 2022, for a total agreement amount of $500,000.00 for a 3-year term and the First Amendment was approved by City Council on October 18, 2022, for a total agreement amount of $2,000,000.00. The Community Development Department began utilizing this contract for professional plan check services with m6 Consulting Inc. in March 2022 and the Oxnard Fire Department began utilizing this contract for plan check services due to a staff vacancy since June 2023. Agreement A-8424 with CSG Consultants, Inc. was approved by City Council on March 1, 2022, for a total agreement amount of $500,000.00 for a 3- year term. The Community Development Department began utilizing this contract for professional plan check services with CSG Consulting Inc. in March 2022.

DISCUSSION

Community Development has been aggressively utilizing professional consulting plan check services in an effort to mitigate the ongoing plan check backlog that built up during the pandemic and also, as a result of staff vacancies shortly thereafter. With the additional financial resources provided by Council since FY 22, in addition to the use of consultant plan check services, vacant positions have been filled, a new Senior Plan Check Engineer position was created and filled, and significant progress has occurred in reducing the backlog to acceptable levels. Community Development currently has a manageable building plan check queue of 210 projects, down from 469 in September 2022. Additionally, the 170
number of projects waiting for building plan check services for more than 30 days is down from 205 projects to 31 projects in the same timeframe.

While the long term business model for Community Development is to perform a majority of the plan check work in- house, there has been a persistent increase in workload driven primarily by housing projects ranging from multistory apartments and condominiums to Accessory Dwelling Unit project submittals. Community Development will continue to monitor workload, staffing, and consulting budgets with the goal of transitioning to the use of consulting plan check services for addressing unexpected peaks in workload rather than to keep up with ongoing workload. This transition is expected to take several years to fully materialize and will likely require reallocating our budget resources from consulting services to personnel costs through the budget process.

City Council’s approval and execution of Amendments to Agreements A-8418 and A-8424 will allow Community Development to continue to improve and maintain permit wait times, thus supporting economic growth by reducing the timeframes for businesses and property owners to acquire their needed construction permits.

m6 Consulting Inc.

The Community Development Department’s need for m6 Consulting, Inc. for on-call development plan check services is anticipated to be $350,000 per year, which includes building and civil plan check, overflow building inspection services, and a contingency for staffing assistance through the Tyler/EPL software implementation within the Community Development Department. This Tyler/EPL software implementation has been ongoing and is anticipated to result in a ‘go-live’ date in late Spring of 2025. In the past 2 fiscal years, the use of m6 consulting services by Community Development has totaled $340,000 and $360,000 for FY 23 and FY 24, respectively.

The Oxnard Fire Department began using m6 Consulting, Inc. for development related fire code plan checking services in June 2023. As previously mentioned, this was due to a staff vacancy that left them without a dedicated fire code plan check staff member. A conservative assessment for the Oxnard Fire Department’s use of m6 Consulting, Inc. over the next 2 years is estimated to be $200,000 per year for a total contract need of $400,000 through m6 Consulting, Inc. for the Oxnard Fire Department.

Through July 2024, the Community Development Department and Oxnard Fire Department had utilized approximately $1.4M of the current $2.0M total contract with m6 Consulting, Inc., with an additional $445,000 encumbered by current task orders, and thus an increase in the total agreement amount is being sought in addition to a 2-year extension. The total anticipated need for Community Development and Oxnard Fire Department is thus $350,000 per year for Community Development plus $200,000 per year for Oxnard Fire Department and, when projected, across the 2-year extension requested in the Second Amendment yields a total contract increase request for m6 Consulting, Inc of $1,100,000.00.

CSG Consultants, Inc.

The Community Development Department’s need for CSG Consultants, Inc. for building plan check services is anticipated to be $250,000 per year. In the past 2 fiscal years, the use of CSG Consultants, Inc. by the Community Development Department has totaled $211,000 for FY 23, and $121,000 in FY 24. It should be noted that the decline in consultant utilization in FY 24 was due to a large City project that would have been sent to CSG Consultants, Inc.

However, the project did not materialize due to the City’s bond litigation. Had that project proceeded as originally anticipated, CSG Consultants, Inc. would have performed building plan check services in excess of $250,000 in FY 24.

Through July 2024, the Community Development Department had utilized approximately $330,000 of the current $500,000 contract for professional plan check services, with an additional $167,000 encumbered by current task orders, and thus an increase in the total agreement amount is being sought in addition to a 2-year extension. Based on anticipated project workload, the Community Development Department’s use of CSG Consultants, Inc. throughout the 2-year extension requested in this First Amendment, a contract increase of $250,000 per year for a total increase of $500,000 is being requested.

STRATEGIC PRIORITIES

This agenda item supports the Economic Development strategy. The purpose of the Economic Development strategy is to develop and enhance Oxnard’s business climate, promote the City’s fiscal health, and support economic growth in a manner consistent with the City’s unique character.

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FINANCIAL IMPACT

There are no anticipated financial impacts associated with this agenda item. All expenditures from these agreements by the Community Development Department and Oxnard Fire Department will be approved through task orders utilizing funds approved in their respective budgets. Funding sources for these agreements include the General Fund (101), Measure O (104) and CUPA funds (360-7020). Future fiscal year funding will be requested in the recommended budget of each fiscal year.

COMMITTEE OUTCOME

The Community Services, Public Safety, Housing & Development Committee approved 3-0 on September 24, 2024.

Prepared by: Jeff Pengilley, Community Development Director

ATTACHMENTS

1. Original Agreement A-8418

2. First Amendment to Agreement A-8418

3. Second Amendment to Agreement A-8418

4. Original Agreement A-8424

5. First Amendment to Agreement A-8424

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Agreement No. A-8418

SECOND AMENDMENT TO AGREEMENT FOR PROFESSIONAL SERVICES

This Second Amendment (“Second Amendment”) to the Agreement for Professional Services (“Agreement”) is made and entered into in the County of Ventura, State of California, this ______ day of ____________, 2024, by and between the City of Oxnard, a municipal corporation (“City”), and M6 Consulting, Inc. (“Consultant”). This Second Amendment amends the Agreement entered into on February 1, 2022, by City and Consultant. The Agreement previously has been amended on October 18, 2022 by a First Amendment.

City and Consultant agree as follows:

1. Section 4 of the Cover Page of the Agreement is hereby amended to “Schedule of Services: The services must be completed within five (5) calendar years of the Agreement Start Date listed above.”

2. The date in Section 5 of the Cover Page of the Agreement is hereby amended to “February 1, 2027.”

3. The amount in Section 6 of the Cover Page of the Agreement is hereby amended to $3,100,000.

4. The name in Section 7 of the Cover Page of the Agreement is hereby amended to “Jeff Pengilley, Community Development Director.”

5. The address in Section 10 of the Cover Page of the Agreement is hereby amended to:

“FOR CITY:

City of Oxnard
214 South A Street
Oxnard, CA 93030
Attn: Jeff Pengilley, Community Development Director”

6. The email in Section 11 of the Cover Page of the Agreement is hereby amended to:

“CITY’S PROJECT MANAGER:

[email protected]”

7. As so amended, the Agreement remains in full force and effect.

[Signatures on next page]
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Agreement No. A-8418

IN WITNESS WHEREOF, the parties hereto have executed the Agreement on the date first written above.

CITY OF OXNARD CONSULTANT

John C. Zaragoza, Mayor1 Date Robert P. Woodward, CEO2 Date

Masoud Mahmoud, CFO Date

ATTEST:

Rose Chaparro, City Clerk Date

APPROVED AS TO FORM:

Stephen M. Fischer Date
City Attorney

1 The City Council must authorize and the Mayor must execute any agreement over $200,000. 2 The City requires the following for any contract:
• For a corporation, the signatures of the Board President, CEO or Vice President and of the Board Secretary, Assistant Secretary, CFO or Assistant Treasurer;
• For an LLC, the signatures of at least two managers of the LLC (company directors, not lower-level managers); or • For a partnership, the signature of a partner. If the partnership is a limited partnership, the signer must be a general partner.

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Agreement No. A-8424

FIRST AMENDMENT TO AGREEMENT FOR PROFESSIONAL SERVICES

This First Amendment (“First Amendment”) to the Agreement for Professional Services (“Agreement”) is made and entered into in the County of Ventura, State of California, this ______ day of ____________, 2024, by and between the City of Oxnard, a municipal corporation (“City”), and CSG Consultants, Inc. (“Consultant”). This First Amendment amends the Agreement entered into on March 1, 2022, by City and Consultant.

City and Consultant agree as follows:

1. The date in Section 5 of the Cover Page of the Agreement is hereby amended to “March 1, 2027.”

2. The amount in Section 6 of the Cover Page of the Agreement is hereby amended to $1,000,000.

3. The name in Section 7 of the Cover Page of the Agreement is hereby amended to “Jeff Pengilley, Community Development Director.”

4. The address in Section 10 of the Cover Page of the Agreement is hereby amended to:

“FOR CITY:

City of Oxnard
Attn: Jeff Pengilley, Community Development Director
214 South A Street
Oxnard, CA 93030”

5. The email in Section 11 of the Cover Page of the Agreement is hereby amended to:

“CITY’S PROJECT MANAGER:

[email protected]”

6. As so amended, the Agreement remains in full force and effect.

[Signatures on next page]
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Agreement No. A-8424

IN WITNESS WHEREOF, the parties hereto have executed the Agreement on the date first written above.

CITY OF OXNARD CONSULTANT

John C. Zaragoza, Mayor1 Date Cyrus Kianpour, President2 Date

Nourdin Khayata, Secretary Date

ATTEST:

Rose Chaparro, City Clerk Date

APPROVED AS TO FORM:

Stephen M. Fischer Date
City Attorney

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CITY COUNCIL AGENDA REPORT

INFORMATION/CONSENT AGENDA
AGENDA ITEM NO. L.8

DATE: October 15, 2024

TO: City Council

FROM: Jason Benites, Police Chief, (805) 385-7624, [email protected]

SUBJECT: Agreement with Peregrine Technologies Inc. for Data Integration Software to be used by the Police Department.

RECOMMENDATION

That the City Council approve and authorize the Mayor to enter into a three-year agreement with Peregrine Technologies to provide real-time data visualization software for the Police Department, for an amount not to exceed $500,000.

(This item did not originate in Committee.)

BACKGROUND

The Police Department utilizes multiple siloed databases across numerous platforms when conducting investigations or analyzing information, such as Crime Analysis. These databases contain valuable information but require an investigator to log into each system individually to seek information. This time-consuming process slows investigations and hinders efficiency by increasing officer and staff workload.

In the current workflow, staff needs to conduct separate logins and queries in the Police Department’s law enforcement records management system (LERMS), computer-aided dispatch (CAD) system, evidence management system (EMS), and many other databases to review the facts of the investigation, or to develop information on a potential suspect or lead. A little bit more about these three principal information systems:
• Law Enforcement Records Management System (LERMS): LERMS centralizes the storage and retrieval of incident reports, arrest records, and other vital documents. Maintaining digital records improves accessibility and accuracy, streamlines reporting processes, and facilitates data analysis to inform policing strategies and resource allocation. Tyler Technologies is the vendor that provides the current LERMS. • Computer-Aided Dispatch (CAD) System: The CAD system is essential for managing emergency responses in real time. It allows dispatchers to efficiently coordinate police resources, utilizing GPS technology to enhance response times and ensure public safety. Additionally, the system collects valuable call volume and call types, aiding in strategic planning and criminal investigations. Tyler Technologies is the vendor that provides the current CAD system.
• Evidence Management System (EMS): The EMS ensures the proper handling and tracking of evidence collected during investigations. It maintains a clear chain of custody, reducing the risk of loss or contamination. This system strengthens case management and fosters public confidence in the Police Department’s commitment to transparency and accountability. Axon Enterprise, Inc. is the vendor that provides the current EMS (Evidence.com).

DISCUSSION

As information systems become more advanced, the Police Department recognizes the need for software to integrate data sources into a digestible, efficient format for the end user. Advancing technology has created products that can 215
streamline this process. The end result includes the faster development of information, streamlined case handling, better analytics, and quicker decision-making capacity. This all lends to more effective public safety.

The Police Department aims to adopt various technologies for efficient, effective, and intelligence-led policing. In November 2023, the Police Department's in-house Technology Committee began examining multiple technologies that integrate real-time crime data. A specific emphasis was placed on products that can improve officer efficiency, develop information faster, and tighten the decision loop.

Police Department staff identified Peregrine Technologies Inc. as a company that provides products that meet these needs. In February 2024, the Technology Committee received a product demonstration from the company. Peregrine differed from the other vendors in this space with its comprehensive technology capabilities for real-time operations and significant functionality in investigative resources and crime analytics. The platform provides a single point of access to view and analyze large-scale and real-time data from various sources to enhance situational awareness and officer safety.

Peregrine offers proven, pre-built connectors that allow for integration with critical existing OPD systems such as Tyler Tech CAD, Tyler Tech LERMS, Axon, Flock ALPR, Veritone, Dronsense, CCTV cameras, Parolee + Probation Databases, and many more. These pre-built connectors eliminate any requirements for the City's Information Technology Department to develop and maintain interfaces between Peregrine and Police Department source systems.

Peregrine is the only solution on the market that offers a fully integrated set of user-facing applications for search, map- based analysis, link analysis, reporting, and dashboarding that allow for seamless data movement between those applications without the need to export and import data manually. Additionally, Peregrine is the only solution that offers desktop, laptop, tablet, and mobile device-accessible versions of those integrated applications so that they can be accessed by authorized users wherever and whenever they are needed. This can be of great value during large-scale events such as a mobile command post deployment or Emergency Operations Center activation.

Peregrine offers proprietary algorithms that enable automatic and auditable deduplication and merging of data, such as “person records.” This will allow investigators to have clean, reliable information to conduct data searches and compile reporting products without the need to change the agency’s underlying source systems. It is important to note that this is one crucial way to increase efficiency, as detectives and staff must currently contend with and cull through duplicate and similar person files.

Peregrine offers the only dynamic ontology or link analysis. Ontology refers to a formal representation of a set of concepts within a domain and the relationships between those concepts. It serves as a framework for organizing information, enabling clearer communication and understanding among the systems. Peregrine ontology has been purpose-built for law enforcement data. This allows Police Department investigators and professional staff to automatically establish connections and relationships between data elements within and across disparate, siloed systems that are otherwise likely to be missed. Furthermore, Peregrine’s dynamic ontology would allow the Oxnard Police Department to have complete flexibility to change its desired data model over time without needing to build and maintain additional interfaces or make any changes to the agency’s underlying source systems and how they store or represent information.

Peregrine’s unified data platform was built specifically with law enforcement and public safety agencies in mind, making it uniquely suited to the needs of the Oxnard Police Department. Based on all of this information, Peregrine has been identified as a sole source vendor for this product.

The Peregrine Technologies service agreement is a three-year agreement with an annual cost of $161,500 per year ($484,500 over three years). In addition to the annual cost, staff anticipates expenses related to data source integrations during the life of the service agreement and therefore recommends a service agreement not to exceed $500,000 for the life of the service agreement.

STRATEGIC PRIORITIES

This agenda item supports Public Safety strategy. The purpose of the Public Safety strategy is to restore and modernize the delivery of public safety services to provide for the safety of our neighborhoods and health of our community.

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FINANCIAL IMPACT

The Peregrine Technologies agreement is a three-year agreement with a value not to exceed $500,000. The amount requested is $161,500 for FY 24-25. There is sufficient funding in the FY 24-25 budget available in the capital project (Fund 301), funded from the Supplemental Law Enforcement Services Fund (SLESF) State Grant. Funding for FY 25-26 and 26-27 will be funded by future SLESF allocations.

For Finance Use Only: Capital Outlay Fund (Org. 3012131 Obj. 53200 / 49300); State/Local Grant Fund (Org. 2101001 Obj. 59800) Project C2418.

COMMITTEE OUTCOME

This item did not originate in Committee, as it had external deadlines imposed on the City (that the City learned of recently), which have significant financial impact and a short deadline to respond. Staff made the determination to bypass committee per Resolution 15,286.

Prepared by: Rocky Marquez, Police Commander

ATTACHMENTS

1. Peregrine - Oxnard PD 9.24.2024

PEREGRINE CUSTOMER ORDER FORM & SCOPE OF SERVICES
Customer Information
Customer Name: Oxnard Police Department Contact: Rocky Marquez Address:
251 S. C Street
Oxnard, CA 93030
Phone: 805-385-7620
Email: [email protected] Fax: N/A
Peregrine Services
Effective Date: 10/30/2024
Initial Term: From the Effective Date through 10/29/2027 (“Initial Term”).

Service Fee: The following fee schedule is available to the Customer if Order Form is signed on or before 10/31/2024. Unless otherwise terminated as set forth in the Terms and Conditions, Customer shall pay Peregrine a service fee of $161,500 annually for the Term as follows:
a. $161,500 within 30 days of Effective Date.
b. $161,500 within 30 days of 10/31/2025.
c. $161,500 within 30 days of 10/31/2026.

Users: Customer may allow an unlimited number of employees of the Oxnard Police Department to access and use the Service.

Onboarding and Training Services: Peregrine will provide Customer with an introductory training session that provides an overview of the Service, background on accessible data sources as of the Effective Date and an introduction to the analytic capabilities of the Service. Peregrine will provide additional training, including refresher sessions and advanced training modules, from time to time upon mutual agreement of the parties.

Professional Services: The initial Customer Data sources and systems that Peregrine will integrate with the Service for Customer are: Tyler Technologies CAD, Tyler Technologies RMS, Axon Evidence.com, Flock LPR, LEFTA, Veritone aiWARE, Document Storage (WebApp), Eventide 911, ESRI.

The fee schedule above includes support for up to 40 million annual LPR reads and a 30-day retention of LPR detections.

Peregrine will cover up to $3,000 for any third-party API or data access fees.

Any additional data integrations or new functionality shall be subject to mutual written agreement of the parties, including with respect to fees. All additional data integration services or new functionality and corresponding fees will be set forth in a statement of work.
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Peregrine services are provided subject to the terms set forth above on this Order Form together with the attached terms and conditions (the “Terms and Conditions,” and together with this Order Form, the “Agreement”). Any capitalized term used in this Order Form but not defined herein shall have the meaning ascribed to it in the Terms and Conditions. By signing this Order From, Peregrine and Customer each agree to the terms and conditions set forth in this Agreement. In the event of any conflict between this Order Form and the Terms and Conditions, the terms of this Order Form shall govern to the extent of such conflict. This Order Form may be executed in counterparts (which may be delivered by electronic mail of .pdf files), each of which counterparts, when so executed and delivered, shall be deemed to be an original, and all of which counterparts, taken together, shall constitute one and the same instrument.

Peregrine: Customer:

By: By:

Name: Nicholas Noone Name:

Title: President & CEO Title:

Date Signed: Date Signed:

Attest:
____________________________________
[XX]
For clarity, Peregrine will provide any other Professional Services and additional data integration services in accordance with Section 2.2 of the Terms and Conditions. 219
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Peregrine Customer Terms and Conditions
These Peregrine Customer Terms and Conditions govern the provision of the services described on the attached Order Form (“Order Form”) by Peregrine Technologies, Inc. (“Peregrine”) to the Oxnard Police Department (“Customer”). By executing an Order Form with Peregrine, Customer agrees to be bound by these Terms and Conditions.

1. Definitions.
“Aggregated Data” has the meaning specified in Section 6.1. “CJIS Security Policy” means the FBI CJIS Security Policy document as published by the FBI CJIS Information Security Officer, currently located at https://www.fbi.gov/services/cjis/cjis-security-policy-resource-center. “Client-Side Software” means any software in source or object code form that Peregrine makes available for use in connection with the Service, including Peregrine’s mobile application(s). “Criminal Justice Information Services Division” or “CJIS” means the FBI division responsible for the collection, warehousing, and timely dissemination of relevant criminal justice information to the FBI and to qualified law enforcement, criminal justice, civilian, academic, employment and licensing agencies. “Customer Data” means any of Customer’s data, information, documents or electronic files that are provided to Peregrine via the Service or otherwise in connection with this Agreement, including any databases Customer procures from third party vendors for Peregrine’s integration with the Service; provided that, for purposes of clarity, Customer Data as defined herein does not include Aggregated Data. “Documentation” means the materials supplied by Peregrine hereunder, in any media, including any and all installer’s, operator’s and user’s manuals, training materials, guides, functional or technical specifications or other materials for use in conjunction with the Service.
“Personal Information” means any information that, individually or in combination, does or can identify a specific individual or by or from which a specific individual may be identified, contacted, or located, including without limitation all data considered “personal data”, “personally identifiable information”, or something similar under applicable laws, rules, or regulations relating to data privacy. “Professional Services” has the meaning specified in Section 2.2. “Service” means Peregrine’s proprietary platform that assists Users with criminal investigations and police leadership decision making, consisting of a hosted web-based interface and the Client-Side Software. For purposes of this Agreement, the Service is exclusive of Professional Services that may be rendered upon mutual agreement of the parties in accordance with Section 2.2.
“SOW” has the meaning specified in Section 2.2.
“Third Party Data” means any third party databases that Peregrine licenses from third party vendors and makes accessible via the Service. For clarity, Third Party Data does not include any Customer Data. “Third Party Products” means any third-party products provided with, integrated with, or incorporated into the Service, including Third Party Data.
“Users” means the individuals authorized by Customer to use the Service in accordance with the terms in the Order Form (including number and type of individuals who may access the Service) and that have been supplied user identifications and passwords by Peregrine.

2. Provision of the Service and Additional Services.

2.1. Service. During the Term and subject to the terms and conditions of this Agreement, including payment of the fees set forth on the Order Form, Customer may: (a) access and use the Service for up to the number of Users set forth in the Order Form, (b) download and reproduce the applicable Documentation solely for internal use in association with the Service, and (c) download, install, and use any Client-Side Software in support of Customer’s 220
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use of the Service, in each case on a nonexclusive, non-transferable, and non-sublicensable basis and solely for Customer’s internal business purposes. Peregrine shall provide Customer with authentication credentials for individual Users upon written request from authorized personnel of Customer, (ii) onboarding and training services as set forth in the Order Form (“Onboarding and Training Services”), and (iii) telephone and standard technical support to Customer during normal business hours (“Technical Support”). Except as set forth herein, Peregrine shall, at its sole cost and expense, provide all facilities and equipment that may be necessary for Peregrine to perform the Services.

2.2. Professional Services. Except as set forth in the Order Form, in the event that Customer requests that Peregrine perform data integration, configuration or implementation services regarding the Service, including integration of Customer Data or Third Party Data and creation of specific modifications to the Service (but excluding any Onboarding and Training Services), Peregrine will discuss the scope and fees for such services and, if agreed, such work will be performed pursuant to a statement of work executed by the parties and referencing this Agreement that describe such scope and fees (an “SOW,” and such services, the “Professional Services”). Any fees associated with the Professional Services shall be set forth in the applicable SOW and Customer shall pay such fees in accordance with Section 4.2 below. To the extent the Professional Services result in any software code or other tangible work product (“Work Product”), all such Work Product will remain owned solely and exclusively by Peregrine and may be used by Customer solely in connection with Customer’s authorized use of the Service under this Agreement. Customer shall permit Peregrine access to Customer’s offices and any other facilities necessary for Peregrine to provide the Professional Services.

2.3. Access and Policies. Customer will permit Peregrine access to Customer’s offices and any other facilities necessary for Peregrine to provide the Service, Onboarding and Training Services, Technical Support, and any Professional Services. Peregrine agrees to, and cause its personnel to, abide by Customer’s facilities access and use policies as provided by Customer to Peregrine in writing in advance of any on-site visits. Customer will also permit and enable Peregrine to have offsite access to Customer Data and the Customer’s production platform for the Service in order to provide the Service, Technical Support and Professional Services. Peregrine agrees to comply with the CJIS Security Policy in connection with its access to Customer Data, including CJIS-defined policies for remote access.

2.4. Compliance with Applicable Laws. Each party and its agents shall comply with all laws applicable to the performance or receipt, as applicable, of the Service hereunder.

2.5. Licenses and Permits. Peregrine and its employees, agents, and any subcontractors have, and will maintain at their sole cost and expense, all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required to practice their respective professions. In addition to the foregoing, Peregrine and any subcontractors shall obtain and maintain during the term of this Agreement valid business licenses from Customer as required by law.

2.6. Nondiscrimination and Equal Opportunity. Peregrine shall not discriminate, on the basis of a person’s race, religion, color, national origin, age, physical or mental handicap or disability, medical condition, genetic information, marital status, sex, sexual orientation, gender or gender identity, against any employee, applicant for employment, subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or programs provided by Peregrine under this Agreement. Peregrine shall comply with all applicable federal, state, and local laws, policies, rules, and requirements related to equal opportunity and nondiscrimination in employment, contracting, and the provision of any services that are the subject of this Agreement, including but not limited to the satisfaction of any positive obligations required of Peregrine thereby.

2.7. Suspension. Notwithstanding anything to the contrary in this Agreement, Peregrine may temporarily suspend Customer’s and any User’s access to any portion or all of the Service if: (a) Peregrine reasonably determines that (i) there is a threat or attack on the Service; (ii) Customer’s or any User’s use of the Service disrupts or poses a security risk to the Service or to any other customer or vendor of Peregrine; (iii) Customer, or any User, is using the Service for fraudulent or illegal activities; (iv) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (v) Peregrine’s 221
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provision of the Service to Customer or any User is prohibited by applicable law; or (vi) any Customer Data submitted, posted, or otherwise transmitted by or on behalf of Customer or an User through the Service may infringe or otherwise violate any third party’s intellectual property or other rights; (b) any vendor of Peregrine has suspended or terminated Peregrine’s access to or use of any Third Party Products required to enable Customer to access the Service; or (c) if Customer fails to pay any undisputed fees when due (any such suspension described in subclauses (a), (b), or (c), a “Service Suspension”). Peregrine shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Service following any Service Suspension. Peregrine shall use commercially reasonable efforts to resume providing access to the Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Peregrine will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any User may incur as a result of a Service Suspension.

2.8. Third Party Products. Peregrine may from time to time make Third Party Products available to Customer or Peregrine may allow for certain Third Party Products to be integrated with the Service. For purposes of this Agreement, such Third Party Products are subject to their own terms and conditions. Peregrine is not responsible for the operation of any Third Party Products and makes no representations or warranties of any kind with respect to Third Party Products or their respective providers. If Customer does not agree to abide by the applicable terms for any such Third Party Products, then Customer should not install or use such Third Party Products. By authorizing Peregrine to transmit Customer Data from Third Party Products into the Service, Customer represents and warrants to Peregrine that it has all right, power, and authority to provide such authorization.

2.9. Open Source Components. Certain aspects of the Service, such as the Client-Side Software, may contain or be distributed with open source software code or libraries (“Open Source Components”). Peregrine will provide a list of Open Source Components for a particular version of any distributed portion of the Service, such as the Client- Side Software, on Customer’s request. To the extent required by the license applicable to such Open Source Components: (a) Peregrine will use reasonable efforts to deliver to Customer any notices or other materials (such as source code); and (b) the terms of such licenses will apply to such Open Source Components in lieu of the terms of this Agreement. To the extent the terms of such licenses prohibit any of the restrictions in this Agreement with respect to any particular Open Source Component, such restrictions will not apply to such Open Source Component.

To the extent the terms of such licenses require Peregrine to make an offer to provide source code or related information in connection with the Open Source Component, such offer is hereby made. For purposes of clarity, Open Source Components are Third Party Products.

3. Customer Responsibilities.

3.1. Generally. Customer is responsible for all activities that occur under User accounts. Customer also shall: (a) ensure it has all rights necessary for Peregrine to integrate the Customer Data with the Service; (b) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (c) prevent unauthorized access to, or use of, the Service, and notify Peregrine immediately of any unauthorized access or use; (d)_ensure each User has its own unique account on the Service and that Users do not share their account credentials with one another or any third party; and (e) comply with all applicable laws in using the Service. Customer agrees to provide its Users with the applications necessary to run the Service as set forth in the Documentation.

3.2. Use Restrictions. Customer shall not use the Service for any purposes beyond the scope of access granted under this Agreement. Without limiting the generality of the foregoing, Customer shall not, and shall ensure Users do not: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party; (b) send spam or otherwise duplicative or unsolicited messages via the Service; (c) send or store infringing or unlawful material; (d) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (e) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (f) attempt to gain unauthorized access to the Service or its related systems or networks; (g) copy, modify, or create derivative works based upon the Service or any component thereof; (h) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Service or any component thereof; (i) use the Service in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property or other right of any third party or that violates any applicable law; (j) 222
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access or use the Service for purposes of competitive analysis of Peregrine or the Service, the development, provision, or use of a competing service or product, or any other purpose that is to Peregrine’s detriment or commercial disadvantage; or (k) input, upload, transmit, or otherwise provide to or through the Service any information or materials, including Customer Data, that are unlawful or injurious in any way

3.3. CJIS Requirements. Customer certifies that it and its Users will comply with the following CJIS requirements:
(a) Customer agrees to use training, policy and procedures to ensure Users use proper handling, processing, storing and communication protocols for Customer Data and any Third Party Data; (b) Customer agrees to protect the Service and any Third Party Data by monitoring and auditing staff user activity to ensure that it is only within the purview of system application development, system maintenance and the support roles assigned; (c) Customer will only provide access to the Service and any Third Party Data through Customer-managed role-based access and applied sharing rules configured by Customer; (d) Customer agrees to create and retain activity transaction logs to enable auditing by Peregrine staff, CJIS and any Third Party Data owners; (e) Customer agrees to perform independent employment background screening for its staff at Customer’s own expense; and (f) Customer agrees to reinforce staff policies for creating User accounts with only one Customer domain email address for each User, with exceptions only as granted in writing by Peregrine.

3.4. Operation Restrictions. Under certain circumstances, it may be dangerous to operate a moving vehicle while attempting to operate a laptop, mobile device or other touch screen and any of their applications. Customer agrees that the Users will be instructed to only utilize the interface for the Service at times when it is safe to do so.

Peregrine is not liable for any accident caused by a result of distraction such as from viewing the screen while operating a moving vehicle.

3.5.Customer Logo. Peregrine may use Customer’s name and logo in Peregrine’s lists of customers provided that such use will comply with any standard trademark guidelines provided by Customer to Peregrine.

3.6. Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Peregrine by mail, email, telephone, or otherwise, suggesting or recommending changes to the Service, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Peregrine is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback.

4. Fees & Payment.

4.1. Fees. Customer shall pay the fees for the Service as specified in the Order Form and in any SOWs. All fees are non-refundable except to the extent otherwise expressly set forth in this Agreement.

4.2. Payment Terms. Except as set forth on the Order Form, Customer shall pay all fees within thirty (30) days of Peregrine issuing an invoice.

4.3. Taxes. Peregrine’s fees do not include any local, state, federal or foreign taxes, levies or duties of any nature (“Taxes”). Customer is responsible for paying all Taxes, excluding only taxes based on Peregrine’s income. If Peregrine has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Peregrine with a valid tax exemption certificate authorized by the appropriate taxing authority.

5. Proprietary Rights. The “Peregrine Technology “means (a) the Peregrine name, the Peregrine logo, and other trademarks and service marks; (b) audio and visual information, documents, software and other works of authorship, including training materials; (c) other technology included in the Service, including Client-Side Software, graphical user interfaces, workflows, products, processes, algorithms, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information provided by Peregrine under this Agreement; and (d) the work product or other results of Professional Services. Peregrine owns and shall retain all rights in the Peregrine Technology. Other than as expressly set forth in Section 2.1 above, no license or other rights in or to the Peregrine Technology or related intellectual property rights are granted to Customer or Users, and all such licenses and rights are hereby expressly reserved to Peregrine. For clarity, “Peregrine Technology” does not include Customer Data.
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6. Data Access, Sharing and Security.

6.1. Customer Data. Peregrine may access, reproduce, and use Customer Data to provide the Service, including to provide Technical Support, Onboarding and Training Services and any Professional Services. Customer agrees that Peregrine may generate technical logs, data and insights about Customer’s usage of the Service (e.g., frequency of logins) (“Peregrine Insights”) and may use the Customer Data in aggregated and anonymized form that does not individually identify any person or entity, including Customer or its Users (“Aggregated Data”) for Peregrine’s internal business purposes and to operate and improve Peregrine’s proprietary software and services, and that Peregrine shall own the Peregrine Insights and the Aggregated Data. Peregrine shall destroy Peregrine Insights and Aggregated Data on termination of this Agreement. Peregrine may choose to terminate the provision of any Customer Data via the Service if the provision of such data may be harmful to the Service, as determined by Peregrine in its reasonable discretion.

6.2. CJIS Security Policy. Peregrine has implemented procedures to allow for adherence to the CJIS Security Policy. The hosting facility for the Service uses access control technologies that meet or exceed CJIS requirements.

In addition, Peregrine has installed and configured solid network intrusion prevention appliances for adherence to the CJIS Security Policy.

6.3. Third Party Data. Any Third Party Data that Peregrine may provide via the Service is governed by the third party owner’s retention policy. Peregrine does not provide any warranties with respect to any Third Party Data and Peregrine may choose to terminate the provision of any Third Party Data via the Service if Peregrine’s applicable rights to such Third Party Data terminate or the provision of such data may be harmful to the Service, as determined by Peregrine in its reasonable discretion.

6.4. Processing of Personal Information. Peregrine’s rights and obligations with respect to Personal information it collects directly from individuals are set forth in Peregrine’s Privacy Policy <https://peregrine.io/privacy-policy/>.

Personal Information included within Customer Data and processed by Peregrine on behalf of Customer is governed by this Agreement.

6.5. Sensitive Information; Marking Requirements. To the extent Customer provides Customer Data that Customer considers to be sensitive, proprietary, restricted, or otherwise requiring sensitive treatment (“Sensitive Information”), Customer is solely responsible for providing appropriate markings to designate the applicable Customer Data as Sensitive Information. Customer shall provide Peregrine with documentation and/or instructions in writing with sufficient detail for Peregrine to identify and distinguish content that is Sensitive Information within other provided Customer Data. Customer shall (a) mark Sensitive Information on its face, (b) make the appropriate designations for Sensitive Information in document metadata, (c) provide Peregrine with a table or other list of Sensitive Information that contains sufficient detail to identify the Sensitive Information; or (d) identify Sensitive Information to Peregrine in some other mutually agreed upon method. Peregrine shall not be responsible for failure to designate Sensitive Information with specific access control status based on Customer failure to provide sufficient information to identify Sensitive Information.

7. Confidentiality.

7.1. Definition of Confidential Information. The term “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including Customer Data, any Third Party Data, the Service, the Documentation, the Peregrine Technology, business and marketing plans, technology and technical information, product designs, and business processes.

7.2. Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party except to perform its obligations or exercise its rights under this Agreement, except with the Disclosing Party’s prior written permission on a case-by-case basis. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event with less than reasonable care. If the Receiving Party is compelled by law or a government authority to disclose Confidential Information of the Disclosing Party, it shall 224
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provide the Disclosing Party with prior notice of such compelled disclosure (to the extent practicable and legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.

7.3. Exceptions. The parties’ obligations in Section 7.2 shall not apply to any information that: (a) is or becomes publicly available without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (d) is received from a third party without breach of any obligation owed to the Disclosing Party.

7.4. Public Records Acts. Peregrine acknowledges that Customer is a public entity and may be governed by applicable laws, rules, or regulations relating to public records (each a “Public Records Act”). Nothing in this Section 7 shall prevent Customer from disclosing Confidential Information for purposes of complying with an applicable Public Records Act to the extent legally required.

7.5. Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section 7, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that such unauthorized disclosure or use may cause irreparable harm to the Disclosing Party for which any other available remedies are inadequate.

8. Warranties & Disclaimers.

8.1. Warranties. Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Peregrine represents and warrants that (i) it will provide the Service in a professional manner consistent with the standards observed by a competent practitioner of the profession in which Peregrine is engaged, and (ii) the Service will perform in accordance with and otherwise substantially conform to its associated documentation.

8.2. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8.1, PEREGRINE MAKES NO WARRANTY OF ANY

KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT TO THE SERVICE, THE PEREGRINE

TECHNOLOGY, ANY THIRD PARTY DATA AND ANY OTHER PRODUCTS OR SERVICES PROVIDED UNDER THIS AGREEMENT. PEREGRINE HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY

OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

9. Indemnification.

9.1. Indemnification by Peregrine. Peregrine shall at its expense defend Customer and its officers, directors, officials, agents, volunteers and employees (“Customer Indemnified Parties”) against any claim made or brought against any Customer Indemnified Party by a third party alleging that the Service as provided to Customer and when used in accordance with this Agreement infringes any intellectual property rights of a third party (each, a “Customer Claim”), and shall indemnify and hold Customer Indemnified Parties harmless from and against any and all liability, loss, damage, claims, expenses, and costs, including without limitation, attorney’s fees, awarded by a court or agreed to by Peregrine in a settlement with respect to such Customer Claim; provided, that Customer (a) promptly gives written notice of the Customer Claim to Peregrine; (b) gives Peregrine sole control of the defense and settlement of the Customer Claim (provided that Peregrine may not agree to any settlement that imposes any liability or obligation on Customer without Customer’s prior written consent, such consent not to be unreasonably withheld, conditioned, or delayed); and (c) provides to Peregrine, at Peregrine’s cost, all reasonable assistance in the defense and settlement of the Customer Claim. Peregrine shall have no obligation under this Section 9.1 or otherwise regarding claims that arise from or relate to (i) Customer’s use of the Service other than as contemplated by this Agreement, (ii) any modifications to the Service made by any entity other than Peregrine (where the liability would not have arisen but for such modification), (iii) any combination of the Service with services or technologies not provided by Peregrine (where the liability would not have arisen but for such combination), (iv) Customer’s use of the Service or portion thereof after Peregrine has terminated this Agreement or such portion of the Service in accordance with this Section 9.1, or (v) Third Party Products. If in Peregrine’s opinion a Customer Claim is likely to be made, or if an existing Customer Claim may cause Peregrine liability, Peregrine may in its discretion (x) obtain a license to enable Customer 225
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to continue to use the potentially infringing portion of the Service, (y) modify the Service to avoid the potential infringement, or (z) if the foregoing cannot be achieved after using reasonable commercial efforts, terminate the Agreement or the license to the infringing portion of the Service and refund the amount of any pre-paid fees applicable to the portion of the terminated Services to be provided after the termination date.

9.2. Indemnification by Customer. To the extent permitted by applicable law, Customer shall at its expense defend Peregrine and its officers, directors, officials, agents, volunteers and employees (“Peregrine Indemnified Parties”) against any claim made or brought against any Peregrine Indemnified Party by a third party based on: (a) Customer’s or any User’s negligence, gross negligence, fraud, or willful misconduct; (b) Customer’s or any User’s use of the Service in a manner not authorized by this Agreement; or (c) Customer Data or Peregrine’s authorized use of such Customer Data (each, a “Peregrine Claim”), and shall indemnify and hold Peregrine Indemnified Parties harmless from and against any and all liability, loss, damage, claims, expenses, and costs, including without limitation, attorney’s fees, awarded by a court or agreed to by Customer in a settlement with respect to such Peregrine Claim; provided, that Peregrine (i) promptly gives written notice of the Peregrine Claim to Customer; (ii) gives Customer sole control of the defense and settlement of the Peregrine Claim (provided that Customer may not agree to any settlement that imposes any liability or obligation on Peregrine without Peregrine’s prior written consent, such consent not to be unreasonably withheld, conditioned, or delayed); and (iii) provides to Customer, at Customer’s cost, all reasonable assistance in the defense and settlement of the Peregrine Claim.

9.3. Sole Remedy. THIS SECTION 9 SETS FORTH CUSTOMER’S SOLE REMEDIES AND PEREGRINE’S SOLE

LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS BY THIRD PARTIES RELATING TO THE SERVICE OR ITS USE.

10. Limitation of Liability.

10.1. Exclusion of Consequential and Related Damages. EXCEPT FOR A PARTY’S BREACH OF SECTION 7, A PARTY’S INDEMNIFICATION AND DEFENSE OBLIGATIONS, OR A PARTY’S GROSS NEGLIGENCE, FRAUD, OR WILLFUL

MISCONDUCT, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS,

LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL,

INCIDENTAL, MULTIPLE, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER

IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

10.2. Liability Cap. IN NO EVENT SHALL PEREGRINE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO

THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING

NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EXCEED THE TOTAL AMOUNTS PAID TO PEREGRINE UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.

11. Term & Termination.

11.1. Term of Agreement. This Agreement commences on the Effective Date and continues for the duration of the term set forth on the Order Form (“Term”), unless earlier terminated in accordance with the Order Form or Section 11.2

11.2. Termination for Cause. A party may terminate this Agreement for cause upon thirty (30) days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to Peregrine prior to the effective date of termination.

11.3. Data. Upon expiration or termination of this Agreement, Peregrine shall have no obligation to maintain or provide any Customer Data or Third Party Data. Unless legally prohibited, Peregrine shall delete all Customer Data in its systems or otherwise in its possession or under its control. Notwithstanding the foregoing or any other provision of this Agreement, Peregrine may use in perpetuity any Aggregated Data.

11.4. Survival. The following provisions shall survive termination or expiration of this Agreement: Sections 4, 5,

6.1, 6.3, 7, 8, 9, 10, 11.3, 11.4, and 12.

12. General Provisions.
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12.1. Insurance. Peregrine shall maintain the insurance coverages described on Appendix A: Insurance.

12.2. Relationship of the Parties. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third-party beneficiaries to this Agreement.

At all times during the term of this Agreement, Peregrine shall be an independent contractor and shall not be an employee of Customer. Except as Customer may specify in writing, Consultant shall have no authority, express or implied, to act on behalf of Customer in any capacity whatsoever as an agent. Peregrine shall have no authority, express or implied, pursuant to this Agreement to bind Customer to any obligation whatsoever.

12.3. Peregrine’s Books and Records. To the extent required by applicable laws, rules, or regulations, Peregrine shall maintain any and all records or documents evidencing or relating to charges for services or expenditures and disbursements charged to the Customer under this Agreement for a minimum of 3 years, or for any longer period required by law, from the date of final payment to Peregrine to this Agreement. All such records shall be maintained in accordance with generally accepted standards and shall be made available for inspection, audit, and/or copying during regular business hours, upon written request of the Customer.

12.4. Force Majeure. Neither party shall be liable by reason of any failure or delay in performance of its obligations under this Agreement (except for the payment of money) on account of events beyond the reasonable control of such party, which may include Internet denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes, and material shortages (each, a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non- performing party will be excused from any further performance of its obligations affected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.

12.5. Federal Government. Any use, copy or disclosure of the Service by the U.S. Government is subject to restrictions as set forth in this Agreement and as provided by DFARS 227.7202-1(a) and 227.7202-3(a)(1995), DFARS 252.227-7013(c)(1)(ii)(October 1998), FAR 12.212(a)(1995), FAR 52.227-19, or FAR 52.227(ALT III), as applicable.

12.6. Additional Government Terms. Peregrine acknowledges that Customer may be a public entity and, accordingly, certain additional laws, rules, and regulations may take precedence over the terms and conditions of this Agreement (the “Additional Government Terms”). The Additional Government Terms, if any, are attached hereto as Error! Reference source not found., and will govern to the extent of any conflict with any other term of this Agreement.

12.7. Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon:
(a) personal delivery; (b) the second business day after mailing; (c) the second business day after sending by confirmed facsimile; or (d) after confirmed receipt of an email. Notices to Peregrine shall be addressed to the attention of Nick Noone, CEO, Peregrine Technologies, [email protected], with a copy to [email protected]. Notices to Customer are to be addressed to the individual identified in the Order Form.

12.8. Waiver; Cumulative Remedies Severability. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

12.9. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party. Notwithstanding the foregoing, Peregrine may assign this Agreement, together with all rights and obligations hereunder, without consent of Customer, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its stock or assets that relate to this Agreement. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. 227
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12.10. Governing Law. This Agreement shall be governed by the laws of California. The state courts located in Ventura County, CA or in the United States District Court for the Central District of California shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts provided that nothing in this Section 12.10 prohibits either party from seeking or obtaining in any jurisdiction injunctive or similar relief in connection with the enforcement of this Agreement.

12.11. Construction. The division of this Agreement into Sections and the insertion of captions and headings are for convenience of reference only and will not affect the construction or interpretation of this Agreement. The terms “this Agreement,” “hereof,” “hereunder” and any similar expressions refer to this Agreement and not to any particular Section or other portion hereof. The parties hereto agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not be applied in the construction or interpretation of this Agreement. As used in this Agreement, the words “include” and “including,” and variations thereof, will be deemed to be followed by the words “without limitation” and “discretion” means sole discretion

12.12. Entire Agreement. This Agreement constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted.

Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding the Order Form) shall be incorporated into or form any part of this Agreement, and all such terms or conditions are hereby rejected and shall be null and void. 228
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Appendix A: Insurance
Peregrine, at its own cost and expense, shall procure the types and amounts of insurance specified herein and maintain that insurance throughout the term of the Agreement. The cost of such insurance shall be included in the Peregrine’s bid or proposal. Peregrine shall be fully responsible for the acts and omissions of its subcontractors or other agents.

Workers’ Compensation. Peregrine shall, at its sole cost and expense, maintain Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance for any and all persons employed directly or indirectly by Peregrine in the amount required by applicable law. The requirement to maintain Statutory Workers’ Compensation and Employer’s Liability Insurance may be waived by the Customer upon written verification that Peregrine is a sole proprietor and does not have any employees and will not have any employees during the term of this Agreement.

Commercial General and Automobile Liability Insurance
General requirements. Peregrine, at its own cost and expense, shall maintain commercial general and automobile liability insurance for the term of this Agreement in an amount not less than $1,000,000 per occurrence and $2,000,000 aggregate, combined single limit coverage for risks associated with the work contemplated by this Agreement.

Minimum scope of coverage. Commercial general coverage shall be at least as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001 (most recent edition) covering comprehensive General Liability on an “occurrence” basis. Automobile coverage shall be at least as broad as Insurance Services Office Automobile Liability form CA 0001 (most recent edition) covering any auto (Code 1), or if Peregrine has no owned autos, hired (code 8) and non-owned autos (Code 9). No endorsement shall be attached limiting the coverage.

Additional requirements. Each of the following shall be included in the insurance coverage or added as a certified endorsement to the policy:
a. The Commercial General and Automobile Liability Insurance shall cover on an occurrence basis. b. Customer, its officers, officials, employees, agents, and volunteers shall be covered as additional insureds for liability arising out of work or operations on behalf of the Peregrine, including materials, parts, or equipment furnished in connection with such work or operations; or automobiles owned, leased, hired, or borrowed by the Peregrine. Coverage can be provided in the form of an endorsement to the Peregrine’s insurance at least as broad as CG 20 10 11 85, or both CG 20 10 10 01 and CG 20 37 10 01. c. For any claims related to this Agreement or the work hereunder, the Peregrine’s insurance covered shall be primary insurance as respects the Customer, its officers, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by the Customer, its officers, officials, employees, agents or volunteers shall be excess of the Peregrine’s insurance and non-contributing.
d. The policy shall cover inter-insured suits and include a “separation of Insureds” or “severability” clause which treats each insured separately.
e. Peregrine agrees to give at least 30 days prior written notice to Customer before coverage is canceled or modified as to scope or amount.

Professional Liability Insurance.

General requirements. Peregrine, at its own cost and expense, shall maintain for the period covered by this Agreement professional liability insurance for licensed professionals performing work pursuant to this Agreement in an amount not less than $1,000,000 per occurrence or claim covering the Peregrine’s errors and omissions.

Claims-made limitations. The following provisions shall apply if the professional liability coverage is written on a claims-made form:
a. The retroactive date of the policy must be shown and must be before the date of the Agreement. 229
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b. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the Agreement or the work.
c. If coverage is canceled or not renewed and it is not replaced with another claims-made policy form with a retroactive date that precedes the date of this Agreement, Peregrine must purchase an extended period coverage for a minimum of five (5) years after completion of work under this Agreement. d. A copy of the claim reporting requirements must be submitted to the Customer for review prior to the commencement of any work under this Agreement.

All Policies Requirements.

Submittal Requirements. Peregrine shall submit the following to Customer prior to beginning services:

Certificate of Liability Insurance in the amounts specified in this Agreement; and Additional Insured Endorsement as required for the General Commercial and Automobile Liability Polices.

Acceptability of Insurers. All insurance required by this Agreement is to be placed with insurers with a Bests' rating of no less than A:VII.

Deductibles and Self-Insured Retentions. Insurance obtained by the Peregrine shall have a self-insured retention or deductible of no more than $100,000.

Wasting Policies. No policy required herein shall include a “wasting” policy limit (i.e. limit that is eroded by the cost of defense).

Waiver of Subrogation. Peregrine hereby agrees to waive subrogation which any insurer or contractor may require from Peregrine by virtue of the payment of any loss. Peregrine agrees to obtain any endorsements that may be necessary to effect this waiver of subrogation, but this provision applies regardless of whether or not the Customer has received a waiver of subrogation endorsement from the insurer.

The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the Customer for all work performed by the Peregrine, its employees, agents, and subcontractors.

Subcontractors. Peregrine shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein, and Peregrine shall ensure that Customer, its officers, officials, employees, agents, and volunteers are covered as additional insured on all coverages.

Excess Insurance. If Peregrine maintains higher insurance limits than the minimums specified herein, Customer shall be entitled to coverage for the higher limits maintained by the Peregrine.

Remedies. In addition to any other remedies Customer may have if Peregrine fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, Customer may, at its sole option, order Peregrine to stop work under this Agreement and withhold any payment that becomes due to Peregrine hereunder until Peregrine demonstrates compliance with the requirements hereof, or terminate this Agreement.

Appendix B: Provisions for California Public Entities
Compliance with Applicable California Laws. Peregrine shall, to the extent required by the California Labor Code, pay not less than the latest prevailing wage rates as determined by the California Department of Industrial Relations.

California Public Records Act. Peregrine acknowledges that Customer is a public entity governed by the California Public Records Act and that nothing in this Agreement shall prevent Customer from disclosing Confidential Information for purposes of complying with the California Public Records Act.

PERS Indemnification by Peregrine. In the event that Peregrine or any employee, agent, or subcontractor of Peregrine providing services under this Agreement is determined by a court of competent jurisdiction or the 230
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California Public Employees Retirement System (“PERS”) to be eligible for enrollment in PERS as an employee of Customer, at Peregrine shall indemnify, defend, and hold harmless Customer for the payment of any employee and/or employer contributions for PERS benefits on behalf of Peregrine or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of Customer.

Political Reform Act Conflicts. Peregrine may serve other clients, but none whose activities within the corporate limits of Customer or whose business, regardless of location, would place Peregrine in a “conflict of interest,” as that term is defined in the Political Reform Act, codified at California Government Code Section 81000 et seq. No officer or employee of Customer shall have any financial interest in this Agreement that would violate California Government Code Sections 1090 et seq.

California State Auditor Requirements. Pursuant to Government Code Section 8546.7, the Agreement may be subject to the examination and audit of the State Auditor for a period of 3 years after final payment under the Agreement.
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CITY COUNCIL AGENDA REPORT

REPORTS
AGENDA ITEM NO. M.1

DATE: October 15, 2024

TO: City Council

FROM: Michael Wolfe, Public Works Director, (805) 385-8055, [email protected]

SUBJECT: Budget Appropriation for Design and Construction Activities for the Mandalay Seawall Project. (10 minutes)

RECOMMENDATION

(Public Works and Transportation Committee approved 3-0 on September 24, 2024.)

Please click the following link to view the required Measure M pre-recorded presentation video: https://youtu.be/j96EqvLVIO0

BACKGROUND

The Mandalay Bay Seawalls project involves the repair of the existing seawalls; these were constructed as early as 1969 and finished in the early 1970s. Some of these seawalls have deteriorated due to age, the type of construction originally used, and the elements (e.g. salt water exposure). When the seawalls were constructed, the developers built them according to the building codes used at that time.

There are approximately 7.6 miles of seawalls, with two specific construction types. One type is the Zurn wall style and the other is the Boise panel style. The method used for repair will depend on the wall type and the type and extent of deterioration. There have been past repairs made to some of the wall areas in the harbor, via a City CIP project, as recent as 2021 and one underway in 2024 for portions along the West Hemlock block. It should be noted that the West Hemlock repair work is in the permitting phase, with the engineering design completed. If the permitting agencies (Regional Water Quality Control Board, Coastal Commission, and Army Corps of Engineers) provide their approval in the expected timeline, these repairs will be bid out later this calendar year.

In June 2024, a routine inspection revealed seawall foundation exposure that warrants the City to prioritize this work and complete it within the next 5 years. The total length of the seawall foundation exposure is approximately 3,095 linear feet.

Design time and lengthy regulatory agency permitting activities will be the critical scheduling elements; consequently, these steps should begin immediately.

Capital Improvement Program (CIP) Reference:

Project No. C1901 – Mandalay Bay Seawalls - CIP 2025-2029 - Adopted June 4, 2024 – Pages 94-95.

DISCUSSION

The City contracted with Duncan Engineering to perform routine inspections in June 2024. This work yielded a map that 232
shows areas of seawall foundations with erosion around/near the pile caps, leaving the timber support piles partially exposed to direct seawater in some locations. Such foundation conditions are a present threat to wall stability. This is because marine boring organisms have direct access to the untreated timber support pilings when the seawall foundations are not covered with enough of the seabed, and can cause structural damage to the pilings. It is Duncan Engineering’s recommendation to remediate the foundation areas of concern within a five year timeframe. This will be accomplished by installing Vinyl Sheet Piling in order to reduce marine borer access points to the timber support pilings.

Public Works intends to have Duncan Engineering complete the construction documents for the repair of the identified wall foundations, and then assist in putting the project out to bid for construction. For this work, staff is recommending using General Fund available fund balance to complete the design, secure the necessary permits from the regulatory agencies, and perform construction.

STRATEGIC PRIORITIES

This agenda item supports the Infrastructure and Natural Resources strategy. The purpose of the Infrastructure and Natural Resources strategy is to preserve and improve our roads, utilities, parks, trees, water supply and natural resources through effective planning, prioritization, and an equitable and efficient use of available funding.

FINANCIAL IMPACT

The cost to complete the final design, regulatory permitting, and construction of this portion of the Mandalay Bay Seawalls project is estimated to be $1.5M. A new project budget appropriation of $1.5M from the available fund balance in the General Fund (101), and corresponding Capital Outlay Fund (301), is recommended to complete the design and permitting phase and the subsequent construction phase of this Project to the Mandalay Bay Seawalls Capital Improvement Project (C1901). It should be noted that the Measure O funds of $2.5M currently available in this project are for the West Hemlock repairs. As such, additional funds are recommended to complete the newly discovered foundation work.

Project Appropriations

Fund Project
Appropriations
Proposed New
Appropriations
New Available
Appropriations
General Fund (101) - Capital Outlay Fund

(Marine Engineering Services)
$279,500 $0 $24,441
Measure O Fund (104)

(West Hemlock Seawall Repairs)
$2,500,000 $0 $2,500,000
Proposed Budget Appropriation from General Fund
(101) Available Fund Balance

(Seawall Foundation Repairs)
NA +$1,500,000 $1,500,000
TOTAL $2,779,500 +$1,500,000 $4,024,441

COMMITTEE OUTCOME

The Public Works and Transportation Committee approved 3-0 on September 24, 2024 to approve the staff recommendation and to forward the item for Council approval.

Prepared by: Morgan Kessler, City Engineer

ATTACHMENTS
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1. Foundation Inspection Map

2. Presentation

234
75562 PAINTED DESERT DRIVEINDIAN WELLS, CA 92210619-273-6702 235
75562 PAINTED DESERT DRIVEINDIAN WELLS, CA 92210619-273-6702 236
Budget Appropriation for Design and
Construction Activities for the Mandalay Bay
Seawall Project for Public Works
Public Works and Transportation Committee
September 24, 2024
City Council
October 15, 2024
KJ May
Sr. Construction Project Manager
237
2 RECOMMENDATION
FOR PUBLIC WORKS AND TRANSPORTATION COMMITTEE:

That the Public Works and Transportation Committee
recommend that the City Council approve and authorize a new project budget appropriation in the amount of $1,500,000 from the available fund balance in the General Fund (101), and corresponding Capital Outlay Fund (301), to the Mandalay Bay Seawalls Capital Improvement Project (C1901).
238
3 RECOMMENDATION
FOR CITY COUNCIL:

That the City Council approve and authorize a new project budget appropriation in the amount of $1,500,000 from the available fund balance in the General Fund (101), and
corresponding Capital Outlay Fund (301), to the Mandalay Bay Seawalls Capital Improvement Project (C1901).
239
● The Public Works Engineering Division oversees the planning and execution of the Mandalay Bay seawall long-term repair program.

The repair program requires periodic condition assessments of the Mandalay Bay seawalls in order to effectively prioritize repair work of the 7.6 miles long seawall infrastructure.
● In June 2024, Duncan Engineering completed a routine seawall inspection. The inspection revealed seawall foundation exposure that warrants the City to prioritize this work and complete it within the next 5 years, recommended by Duncan’s Marine Structural Engineer.

BACKGROUND
4 240

DISCUSSION
5 ●The total length of the seawall foundation exposure is approximately 3,095 linear feet out of 40,128 linear feet. Slides 5 and 6 include visual maps of the affected foundation areas. ●Blue and orange markings on the maps show areas of seawall foundations with erosion around/near the pile caps, leaving the timber support piles partially exposed to direct seawater in some locations. Such foundation conditions are a present threat to wall stability. This is because marine boring organisms have direct access to the untreated timber support pilings when the seawall foundations are not covered with enough of the seabed, and can cause structural damage to the pilings.
241
6 DISCUSSION
242
7 DISCUSSION
243
● A photo of the affected foundation area and a typical section of the seawall foundation for reference.

DISCUSSION
8 8 inches tall and 3 feet long
void with exposed timber piles
Concrete footing for
the seawalls
Seabed
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• The design time and lengthy regulatory agency permitting activities will be the critical scheduling elements; consequently, these steps should begin immediately in order to address the estimated 3,095 linear feet sections of the affected foundation areas within the 5 year recommended timeframe.
• Public Works intends to have Duncan Engineering complete the construction documents for the repair of the identified wall foundations, and then assist in putting the project out to bid for construction. For this work, staff is recommending using General Fund available fund balance to complete the design, secure the necessary permits, and perform construction.

DISCUSSION
9 245
● The cost to complete the final design, regulatory permitting, and construction of this portion of the Mandalay Bay Seawalls project is estimated to be $1,500,000.
● A new project budget appropriation of $1,500,000 to the Mandalay Bay Seawalls Capital Improvement Project (C1901), from the available fund balance in the General Fund (101) and corresponding Capital Outlay Fund (301), is recommended in order to complete the design, permitting, and construction efforts for this Project. It should be noted that the funding currently in this Mandalay Bay Seawalls Project is for the West Hemlock repairs. As such, additional funds are recommended to complete the newly discovered foundation work.
10 FINANCIAL IMPACT
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Questions?
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Oxnard City CouncilOctober 15, 2024

Oxnard City Council
October 15, 2024